Procedural Fairness http://namiblii.org/ en Tumas Granite CC v Minister of Mines and Energy and Others (2) (PA 2328 of 2006) [2008] NAHC 141 (24 June 2008); http://namiblii.org/na/judgment/high-court/2008/141 <span class="field field--name-title field--type-string field--label-hidden">Tumas Granite CC v Minister of Mines and Energy and Others (2) (PA 2328 of 2006) [2008] NAHC 141 (24 June 2008);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/204" hreflang="und">Administrative Review</a></div> <div class="field__item"><a href="/taxonomy/term/279" hreflang="und">Judicial Review</a></div> <div class="field__item"><a href="/taxonomy/term/335" hreflang="und">Procedural Fairness</a></div> <div class="field__item"><a href="/taxonomy/term/596" hreflang="und">Minerals, oil and gas</a></div> <div class="field__item"><a href="/taxonomy/term/786" hreflang="und">EL</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 10/05/2020 - 15:01</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>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.</p> <p>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.</p> <p>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).</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.namiblii.org/files/judgments/nahc/2008/141/2008-nahc-141.pdf" type="application/pdf; length=214599">2008-nahc-141.pdf</a></span> </div> <div class="field__item"> <span class="file file--mime-application-rtf file--general"> <a href="https://media.namiblii.org/files/judgments/nahc/2008/141/2008-nahc-141.rtf" type="application/rtf; length=126447">2008-nahc-141.rtf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p> </p> <p>CASE NO.: (P) A 2328/2006</p> <p> </p> <p><em><u>SUMMARY</u></em></p> <p> </p> <p>TUMAS GRANITE CC versus THE MINISTER OF MINES &amp; ENERGY &amp; 2 (TWO) OTHERS</p> <p> </p> <p> </p> <p> </p> <p><strong>DAMASEB, JP</strong></p> <p> </p> <p> </p> <p>26/02/2008</p> <p><u>STATUTORY INTERPRETATION</u>:</p> <p> </p> <p> </p> <ul><li> <p><u>Minerals (Prospecting &amp; Mining) Act, 33 of 1992: s59(1)(a) &amp; (b), and s62(1)</u></p> </li> </ul><p> </p> <p> </p> <ul><li> <p>Whether permissible to grant an exclusive reconnaissance licence to a non-holder of a reconnaissance licence?</p> </li> </ul><p> </p> <ul><li> <p>Whether a side note in a statute can be used in the interpretation of a statutory provision?</p> </li> </ul><p> </p> <ul><li> <ul><li> <p><u>Held</u>:</p> </li> </ul></li> </ul><p> </p> <ul><li> <p>Not competent to grant an exclusive reconnaissance licence to a non-holder of a reconnaissance licence.</p> </li> </ul><p> </p> <ul><li> <p>Side note to a statutory provision not a safe guide to interpretation of statute.</p> </li> </ul><p> </p> <ul><li> <ul><li> <p><u>Costs</u>:</p> </li> </ul></li> </ul><p> </p> <p>Successful litigant can be denied costs because of its / his conduct. Important for public officials to act in a manner that is accountable &amp; transparent: failure to do so attracting adverse costs order.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>CASE NO.: (P) A 328/2006</p> <p> </p> <p>IN THE HIGH COURT OF COURT OF NAMIBIA</p> <p> </p> <p>In the matter between:</p> <p> </p> <p>TUMAS GRANITE CC APPLICANT</p> <p> </p> <p>and</p> <p> </p> <p><a name="DDE_LINK1" id="DDE_LINK1"></a> THE MINISTER OF MINES &amp; ENERGY 1<sup>ST</sup> RESPONDENT</p> <p> </p> <p>WALVIS GRANITE (PTY) LTD 2<sup>ND</sup> RESPONDENT</p> <p> </p> <p>CAPRIVI MARBLE AND GRANITE (NAMIBIA)</p> <p>(PTY) LTD 3<sup>RD</sup> RESPONDENT</p> <p> </p> <p> </p> <p>CORAM: DAMASEB, JP</p> <p> </p> <p>Heard: 18<sup>th </sup>February 2008</p> <p> </p> <p>Delivered: 26<sup>th</sup> February 2008</p> <p>________________________________________________________________________</p> <p><u>JUDGMENT</u></p> <p> </p> <p><u>DAMASEB, JP</u>:</p> <p> </p> <p>[1] This is a review application in terms of Rule 53 of the Rules of the High Court. In a notice of motion dated 6 December 2006, the applicant sought the following relief:</p> <p>“<strong>1. Reviewing and correcting or setting aside the decision taken by the first respondent on the 1</strong><sup>st</sup> September 2005 to grant EPL 3394 to the second respondent;</p> <p>2. In the alternative to prayer 1 above, that the above decision by the first respondent be declared null and void as being in conflict with Article 18 of the Constitution of the Republic of Namibia and be set aside on that basis;</p> <p> </p> <p>3. That ERL-79 be awarded to the applicant as the successful applicant for such licence;</p> <p> </p> <p>4. That the costs of this application shall be borne by the first respondent save in the event of any of the other respondents opposing the application in which event the costs of this application shall be borne by the first respondent and those respondents opposing the application jointly and severally, the one paying the other to be absolved;</p> <p> </p> <p>5. Granting such further or alternative relief as the above Honourable Court may deem fit.”</p> <p> </p> <p> </p> <p>[2] The applicant applied for an exclusive reconnaissance licence to the first respondent. That application was received on 27 May 2005. While the applicant’s application was pending, the second respondent applied for an exclusive prospecting licence in respect of the same area. The second respondent’s application was granted on 1 September 2005, while that of the applicant was refused – a fact communicated to the applicant only on 13 June 2006, by letter dated 26 May 2006.</p> <p> </p> <p> </p> <p>[3] The first and second respondents oppose the relief sought, while the third respondent has not entered appearance to oppose. The first and second respondents have raised several points <em>in limine. </em>Both maintain that there was an unreasonable delay on the part of the applicant to launch the review application and that this Court should dismiss the application on that ground alone. The first respondent also raises the issue that the applicant has no standing because as a non-holder of reconnaissance licence, it could not have applied for an exclusive reconnaissance licence; while the second respondent says that there is non-joinder of the <em>Mining Commissioner</em> and the <em>Chairperson of the Minerals Board</em>. Second respondent disputes the existence of the applicant, or that the application is authorized.</p> <p> </p> <p>[4] At the hearing of the matter, the parties agreed to argue only the issue of standing as raised by the first respondent - which concerns a proper construction to be placed on section 59(1)(a) and (b), read with s62(1) of the <em>Minerals (Prospecting and Mining) Act</em>, 33 of 1992 (hereafter the Act), it being common ground amongst the parties that if the issue is decided against the applicant, that would be the end of the entire application.</p> <p> </p> <p>[5] The following facts are common cause. On 27 May 2005 the applicant submitted an application for an <em>exclusive reconnaissance licence (ERL79) </em> for dimension stone group of minerals <em>‘in terms of s59(1)(b)’</em> of the Act. The applicant admits it was then not the holder of a reconnaissance licence. The ERL 79 application was received on 27 May 2005 by the officials of the first respondent. On 13 June 2006 (11½ months after submitting its ERL 79), the applicant was advised that its application was not successful.</p> <p> </p> <p>[6] Upon being informed that the application was unsuccessful, the applicant wrote a letter to the first respondent on 13 June 2006 asking for reasons for the decision.</p> <p> </p> <p>[7] On 14 August 2006, the first respondent wrote a long letter to the applicant in which he sets out the reasons for refusing the applicant’s application for the ERL 79. In that letter the first respondent gave the following <em>‘main’</em> reasons for refusing the applicant’s ERL 79 application:</p> <p> </p> <p>(a) the applicant already held several dimension stone licences covering an area of 15 000 ha which made the applicant guilty of land-locking;</p> <p>(b) the applicant was taking too long to explore its licences and did not apply for mining licences;</p> <p>(c) the applicant did not have sufficient financial resources to work on ERL 79 and was therefore looking for state funds for the purpose;</p> <p>(d) the applicant made discriminatory remarks towards government officials;</p> <p>(e) that first respondent was not required by s125 of the Act to grant applications in the order they were lodged</p> <p>(f) the applicant should ideally apply for an exclusive prospecting licence for dimension stone.</p> <p> </p> <p>[8] It has now turned out that, on first respondent’s own admission, some of these reasons are ‘<em>inaccurate’</em>. In his answering affidavit in opposition to the relief sought by the applicant, the first respondent states that the applicant, by its own admission, applied for an exclusive reconnaissance licence for dimension stone <em>‘as contemplated in s59(1)(b)’</em> of the Act when it was not the holder, again by its own admission, of a reconnaissance licence. This, the first respondent says, is not sanctioned by the Act and there was therefore no valid application for an exclusive reconnaissance licence before the first respondent which could be granted or refused.</p> <p> </p> <p>[9] In the replying affidavit, the applicant denies that an application for an exclusive reconnaissance licence by a non-holder of a reconnaissance licence is not competent. In oral argument however, Mr Smuts SC conceded on behalf of the applicant that since the applicant was not a holder of a reconnaissance licence when it applied for ERL 79, it could not have applied for an exclusive reconnaissance licence in terms of s59(1)(b); but that an exclusive reconnaissance licence was competent under s59(1)(a) of the Act and that the reference to s59(1)(b) was erroneous. Messrs Oosthuizen and Heathcote for the first and second respondents respectively, retort that s59(1)(a) only authorizes the granting of a reconnaissance licence <em>simpliciter</em> and not an exclusive reconnaissance licence. Mr Smut’s counter argument was that reconnaissance licences are granted under s62 (1) and that s59, as shown by its side note which reads <em>‘Exclusive rights to carry on reconnaissance operations licences’</em> deals only with exclusive reconnaissance licences and that, for that reason, the licence envisaged in s59 (1) (a) is an exclusive reconnaissance licence and not an ordinary reconnaissance licence.</p> <p> </p> <p> </p> <p>[10] Mr. Smuts did not deal with this issue in the heads of argument because, throughout, the applicant had maintained that its application was <em>‘in terms of s59 (1) (b)’</em>. After hearing oral argument on 18 January 2008, I reserved judgment and invited counsel for the parties to submit further written submissions on or before 25 February, if they wanted to, in order to elaborate on the point of law that I am being asked to decide. The applicant and second respondent submitted further submissions to which I have had regard.</p> <p> </p> <p>[11] As I stated before, the applicant now concedes that as a non-holder of a reconnaissance licence, it could not have applied for an exclusive reconnaissance licence under s59 (1) (b). This is what the section states:</p> <p> </p> <p> </p> <p>”<strong>59(1) Subject to the provisions of subsection (2), the Minister may, on application by –</strong></p> <p> </p> <p>(a) …</p> <p>(b) <u>the holder of a reconnaissance licence</u>, cause an endorsement to</p> <p>be made on such reconnaissance licence;</p> <p> </p> <p>by virtue of which an exclusive right is conferred upon such person …”</p> <p> </p> <p> </p> <p>[12] The concession is therefore properly made and that ends that party of the debate. I must now decide whether s59 (1) (a) authorizes the granting of an exclusive reconnaissance licence as contended by the applicant.</p> <p> </p> <p>[13] Part IX of the Act comprises <em>‘Provisions relating to reconnaissance licences’</em>. The first section in Part IX is 58. Subsection (1) thereof sets out the activities the holder of a reconnaissance licence is authorized to undertake, while subsection(2) sets out things a holder of a reconnaissance licence may not do. Subsection (3) then states that a reconnaissance licence does not confer on a holder of a reconnaissance licence any preferential right to any other licence while the reconnaissance licence exists. It also states that the Minister is not prevented from granting any other licence in respect of any mineral or group of minerals or any area of land in the reconnaissance area to which the licence relates.</p> <p> </p> <p>[14] That is the reason why the applicant wants an exclusive reconnaissance licence. It wants exclusivity which an ordinary reconnaissance licence does not confer. That exclusivity arises under s59 (1), in the words beginning with ‘by virtue’ after the semi-colon at the end of the sentence appearing at para (b).</p> <p> </p> <p>Section 59 reads as follows:</p> <p> </p> <p>“<strong>(1) Subject to the provisions of subsection (2), the Minister </strong>may, on application by –</p> <p> </p> <p>(a) a person applying for a reconnaissance licence, grant to such person a reconnaissance licence; or</p> <p>(b) the holder of the reconnaissance licence, cause an endorsement to be made on such reconnaissance licence;</p> <p> </p> <p><u>by virtue of which an exclusive right is conferred upon such person</u> to carry on in the reconnaissance area to which such reconnaissance licence relates, reconnaissance operations in relation to any mineral or group of minerals specified in such licence, if the Minister is on reasonable grounds satisfied that the extent of the reconnaissance operations to be carried out and the expenditure to be incurred in or in relation to the reconnaissance area justifies the grant of such exclusive right.”</p> <p> </p> <p><strong>[15] If the applicant’s alternative argument is to succeed, then it would mean that s59(1)(a) creates a special class of reconnaissance licence which, without more, attracts exclusivity and, therefore, not subject to the limitations of subsection (3) of s58 which I set out in para 13 of this judgment. In that case s59 (1) (a) would read as follows:</strong></p> <p> </p> <p>“<strong>Subject to the provisions of subsection (2), the Minister may, on application by-</strong></p> <p> </p> <p>(a) a person applying for a reconnaissance licence, grant to such person a reconnaissance licence;</p> <p> </p> <p>by virtue of which an exclusive right is conferred upon such person to carry on in the reconnaissance area to which such reconnaissance licence relates , reconnaissance operations in relation to any mineral or group of minerals specified in such licence , if the Minister is on reasonable grounds satisfied that the extent of the reconnaissance operations to be carried out and the expenditure to be incurred in or in relation to the reconnaissance area justifies the grant of such exclusive right.’</p> <p> </p> <p>The question is, is that what the legislator intended?</p> <p> </p> <p>[16] During oral argument, Mr. Smuts relied, in part, on the marginal note to s59 in support of his submission that the legislator so intended. In the supplementary heads of argument filed on 25<sup>th</sup> February 2008, Mr. Smuts, correctly, concedes that a marginal note is not to be had regard to in the interpretation of a statute. Mr. Smut’s argument is further predicated on the thesis that the power to grant an ordinary reconnaissance licence is contained in s62(1) and not in s59(1)(a), and that the legislator could not have intended the two provisions to do the same thing as one of them would then be superfluous. Mr Smuts also submitted that if there is ambiguity about s59(1)(a) i.e. whether it contemplates the granting of an exclusive reconnaissance licence or not, I must find that the provision does so provide, based on the fact that the first respondent and his officials had since the inception of the Act so interpreted it and granted exclusive reconnaissance licences to persons who applied therefor without holding any reconnaissance licence.</p> <p> </p> <p> </p> <p> </p> <p>[17] Section 62(1) states:</p> <p> </p> <p>“<strong>Subject to subsections (4) and (5) of section 48, the Minister shall </strong>upon the granting of an application for a reconnaissance licence, direct the Commissioner to issue to the person who applied for such reconnaissance licence, a reconnaissance licence on such terms and conditions as may be agreed as provided in the said subsections.”</p> <p> </p> <p> </p> <p>[18] Section 62(1) is remarkable in this sense: firstly, it requires that <em>‘upon the granting of an application’</em>, the Minister <em>‘shall’</em> direct the Mining Commissioner <em>‘to issue’ </em>a licence. The section thus draws a distinction between the act of <em>‘granting’ </em>an application for a reconnaissance licence and the act of <em>‘issuing’</em> a reconnaissance licence. The section is silent about the Minister’s discretionary power to grant ‘an application’ for a reconnaissance licence. It certainly assumes that the Minister exercises a power to ‘<em>grant</em>’ under another provision. Had s59 (1) (a) not existed – note that in it, it is said the Minister <u>may</u> (which denotes a discretionary power) upon application by <u>a person</u> <u>grant</u> – and the only provision which allowed the Minister to grant a reconnaissance licence was s62 (1) as contended by the applicant, on what basis could the Minister have refused an application for a reconnaissance licence? That sections 59(1) (a) and 62(1) complement each other is, therefore, obvious. My point here is that the word ‘<em>may</em>’ is absent in s62 (1) and does not precede the words ‘<em>upon the granting’ </em>in that provision, while it is present in s59 (1) and precedes the word ‘<em>grant</em>’ in (a). The significance of that is that where the legislature does not want the Minister to enjoy discretionary power in granting a licence, it says so specifically ( vide s69(1)(a)&amp;(b);s79(2); s92(1)(a)&amp;(b)). Remarkably sections 59 and 62 follow that pattern.</p> <p> </p> <p>[19] In my view, the scheme and context of the Act supports the conclusion that what is referred to in s59(1)(a) is an ordinary reconnaissance licence , which has the attributes contemplated in s58(1), the requirements for application in s60, the disqualifications in s61; and to be issued by the <em>Mining Commissioner</em> under s62(1).</p> <p> </p> <p>[20] Although remarkable in the sense that I have pointed out, s59 (1) (a) is not unique. Mr. Heathcote correctly submitted that the following provisions follow the same scheme and pattern as ss58-62, in the sense that the power to grant the licence, and the Minister’s direction to the Mining Commissioner to issue the licence after the Minister had granted it, are in different provisions which must be read as complementing each other. I will illustrate:</p> <p>“PART X</p> <p> </p> <p>Provisions relating to exclusive prospecting licences</p> <p> </p> <p> </p> <p>Rights of holders of 67. (1) Subject to the provisions of subsection (2)</p> <p>Exclusive prospecting and the other provisions of this Act, the</p> <p>licences. holder of an exclusive prospecting licence</p> <p>shall be entitled -</p> <p> </p> <p>(a) to carry on prospecting operations …</p> <p>(b) to remove any mineral or group of minerals … …</p> <p>(2) The provisions of subsection (1) shall not be construed as –</p> <p>(a) conferring on the holder of an exclusive prospecting licence any preferential right to any other licence in relation to any mineral or group of minerals, other than a mineral or group of minerals to which such exclusive prospecting licence relates, during the currency or on expiry of such exclusive prospecting licence;</p> <p> </p> <p>Exercise of powers by 69. (1) Subject to the provisions of this section,</p> <p>Minister to grant or refuse the Minister -</p> <p>exclusive prospecting licences.</p> <p>(a) <u>shall</u>, in the case of an application for an exclusive prospecting licence by the holder of a reconnaissance licence to whom an exclusive right has been conferred in terms of section 59, subject to the provisions of sections 48(4) and (5) and 49, <u>grant such application if</u> such application relates to an area of land and a mineral or group of minerals to which such exclusive right relates; or</p> <p> </p> <p>(b) <u>may</u>, in the case of any other application for an exclusive prospecting licence, subject to the provions of sections 48(4) and (5) and 49, <u>grant or refuse such application</u>.</p> <p> </p> <p>Issue of exclusive prospecting 70. (1) Subject to subsections (4) and (5) of section 48,</p> <p>licences. the Minister shall, <u>upon the granting of an application for an exclusive prospecting licence, direct the Commissioner to issue to the person </u>who applied for such licence, an exclusive prospecting licence on such terms and conditions as may be agreed upon as provided in the said sub-sections.</p> <p> </p> <p>(2) The provisions of section 62 shall apply <em>mutatis mutandis </em>in relation to an exclusive prospecting licence.</p> <p> </p> <p> </p> <p>PART XI</p> <p> </p> <p>Provisions relating to mineral deposit retention licences</p> <p> </p> <p> </p> <p>Rights of holders of 77. (1) Subject to the provisions of subsection (2)</p> <p>mineral deposit retention the other provisions of this Act, the</p> <p>licences. holder of mineral deposit retention licences</p> <p>shall be entitled -</p> <p> </p> <p>(a) to retain the retention area to …</p> <p>(b) to carry on … (c) to remove any mineral or group of minerals …</p> <p> </p> <p>Persons who may apply 78. Notwithstanding the provisions of section 48, no</p> <p>for mineral deposit retention person shall apply …</p> <p>licences.</p> <p> </p> <p>Application for mineral 79. An application by any person for a mineral deposit retention licences. deposit retention licence –</p> <p> </p> <p>(a) shall contain -</p> <p>…</p> <p> </p> <p>(2) The Minister <u>shall not refuse to grant</u> an application for a mineral deposit retention licence on any grounds contemplated in subsection (1)(b), unless the Minister –</p> <p> </p> <p>(a) has by notice in writing informed such holder of his or her intention to so refuse such application –</p> <p>…</p> <p>(b) has taken into consideration any representations made by such person.</p> <p> </p> <p> </p> <p>Issue of mineral deposit 81. (1) Subject to subsections (4) and (5) of section 48,</p> <p>retention licences. the Minister shall, <u>upon the granting of an</u></p> <p><u>application for a mineral deposit retention licence, direct the Commissioner to issue</u> to the person who applied for such licence, a mineral deposit retention licence on such terms and conditions as may be agreed upon as provided in the said subsections.</p> <p> </p> <p>(2) The provisions of section 62 shall apply <em>mutatis mutandis </em>in relation to a mineral deposit retention licence.</p> <p> </p> <p>PART XII</p> <p> </p> <p> </p> <p>Provisions relating to mining licences</p> <p> </p> <p> </p> <p>Rights of holders of 90. (1) Subject to the provisions of subsection (2)</p> <p>mining licences. and the other provisions of this Act, the</p> <p>holder of a mining licence shall be entitled -</p> <p> </p> <p>(a) to carry on mining operations …</p> <p>…</p> <p>Exercise of powers of 92. (1) The Minister -</p> <p>Minister to grant or refuse</p> <p>mining licences. (a) <u>shall</u> in the case of an application for mining</p> <p>licence by –</p> <p>(i) the holder of a reconnaissance licence to whom an exclusive right has been conferred in terms of section 59;</p> <p> </p> <p>(ii) the holder of an exclusive prospecting licence;</p> <p> </p> <p>(iii) the holder of a mineral desposit retention licence; or</p> <p> </p> <p>(iv) the holder of a mining claim,</p> <p> </p> <p>subject to the provisions of subsections (2) and (4) of this section, <u>grant such application</u>, if such application relates to an area of land and a mineral or group of minerals to which such exclusive right or mineral deposit retention licence or the claim area in question relates;</p> <p> </p> <p>(b) <u>may</u>, in the case of any other application for a mining licence, subject to the provisions of sub-sections (3) and (4) of this section, <u>grant or refuse such application</u>.</p> <p> </p> <p>(2) Notwithstanding the provisions of subsection (1)(a), the Minister shall not grant an application by an person for a mining licence –</p> <p>…</p> <p> </p> <p>Issue of mining licences 93. (1) Subject to subsections (4) and (5) of section 48,</p> <p>the Minister shall, <u>upon the granting of an application for a mining licence, direct the Commissioner to issue to</u> the person who applied for such licence, a mining licence on such terms and conditions as may be agreed upon as provided in the said subsections.</p> <p> </p> <p>(2) The provisions of section 62 shall apply <em>mutatis mutandis </em>in relation to a mining licence.’’</p> <p> </p> <p> </p> <p><strong>[21] That the interpretation of s59(1)(a) clamored for by the first and second respondents accords with the legislative intent is clear if one has regard to the above provisions and compare them with s59(1)(a)’s scheme, to wit:</strong></p> <p>“PART IX</p> <p> </p> <p>Provisions relating to reconnaissance licences</p> <p> </p> <p> </p> <p>Rights of holders of 58. (1) Subject to the provisions of this Act, a</p> <p>reconnaissance licences. reconnaissance licence shall authorize the holder of such licence -</p> <p> </p> <p>(a) to carry on reconnaissance operations in the reconnaissance area …</p> <p>…</p> <p>Exclusive rights to carry 59. (1) Subject to the provisions of subsection (2)</p> <p>on reconnaissance operations. the Minister <u>may</u>, on application by –</p> <p> </p> <p>(a) a person applying for a reconnaissance licence, <u>grant to such person a reconnaissance licence</u>; or</p> <p> </p> <p>(b) the holder of a reconnaissance licence, cause an endorsement to be made on such reconnaissance licence,</p> <p>…</p> <p>Applications for recon- 60. An application by any person for a reconnais-</p> <p>naissance licences. sance licence –</p> <p> </p> <p>(a) shall contain –</p> <p> </p> <p>…</p> <p>62. (1) Subject to subsections (4) and (5) of section 48,</p> <p>the Minister shall <u>upon the granting of an application for a reconnaissance licence, direct the Commissioner to issue to the person</u> who applied for such reconnaissance licence, a reconnaissance licence on such terms and conditions as my be agreed upon as provided in the said subsections.”</p> <p> </p> <p>[22] Thus, looking at the language of s59 (1) (a), the scheme and context of the Act overall, and reading the various provisions in relation to one another, the intention of the legislator becomes clear. Where, as here, the intention of the legislator is clear from placing the natural meaning on the words used in the Statute , the Court must give effect thereto and not place a forced construction thereon which has the effect of defeating the intention of the lawmaker.</p> <p> </p> <p>[23] Why the draftsman chose the marginal note to s59 to read <em>“Exclusive rights to carry on reconnaissance operations”</em>,<em> </em>is a mystery. If ever there was any reason needed to justify the rule that a marginal note to a statutory provision is no safe guide in its interpretation, the present case provides it. Marginal notes are not regarded as part of the statute. (See: <em>Government of the Republic of Namibia and another v Cultura 2000 and another</em> 1994 (1) SA 407 (NmS) at 425G; 1993 NR 328 at 347 E-F .) As De Villiers AJA said in <em>Durban Corporation v Estate Whittaker </em>1919 AD 195 at 201-2:</p> <p> </p> <p>“<strong>Under out system of legislation they are not considered or passed by the legislature.” </strong></p> <p> </p> <p>In <em>Chandler v DPP</em> [1964] AC 763, the House of Lords held that the marginal note <em>‘Penalties for spying’ </em>to s1 of the Official Secrets Act 1911, did not restrict the wide words of that section making it an offence for any person for any purpose prejudicial to the safety or the interests of the State to approach or be in the neighborhood of or enter any prohibited place. The offence, it was held, could be committed by political demonstrators who had no intention of spying. Lord Reid stated (at 789-90):</p> <p> </p> <p>“… <strong>in my view side notes cannot be used as an aid to construction. They are mere catchwords and I have never heard of it being supposed in recent times that an amendment to alter a side note could be proposed in either House of Parliament. Side notes in the original Bill are inserted by the draftsman … So side notes cannot be said to be enacted in the same sense as the long title or any part of the body of the Act.”</strong></p> <p> </p> <p><strong>(See also: <em>Union Government v Tonkin </em>1918 AD 533 at 544;<em> Rose’s Car Hire (Pty) Ltd v Grant</em> 1948 2 SA 466 (A) 474; <em>Rossouw v Sachs </em>1964 (2) SA 551 AD at 561 , and <em>Cornelissen v Universal Caravan Sales (Pty) Ltd</em> 1971 (3) SA 158 (A) 175A .)</strong></p> <p> </p> <p><strong>[24] That the legislature intended to make a distinction between the granting of a reconnaissance licence, and the issuing of it, is reinforced by the ‘<em>definitions’</em> section in the Act which defines a <em>‘reconnaissance licence’ </em>as <em>‘a licence issued under section 62 …’</em>. In my view, this demonstrates that no direction to issue a licence can be given and no licence can be issued under s62 (1), unless it was first granted under s59 (1) (a). On the other hand, a person who has been <em>‘granted’</em> a licence by the Minister under s59 (1) (a), cannot enforce it until issued by the Mining Commissioner under s62 (1). (Compare the <em>regime</em> created by the definition ‘n<em>on-exclusive prospecting licence’ </em>under s21, read with s18 (3) of the Act.) Looking at the provisions I have referred to<em>,</em> one discerns a common thread and harmony in the Act’s provisions which deal with the Minister’s discretionary power to grant or refuse applications for various licences - which cannot be disturbed by using the marginal note to s59 to hold that the section only deals with exclusive reconnaissance licences. That would be usurping the function of the legislature and defeating the statutory intention which is, with respect, unambiguous.</strong></p> <p> </p> <p>[25] I come to the conclusion therefore that only the holder of a valid reconnaissance licence may apply for and be granted an endorsement of exclusive reconnaissance rights on a reconnaissance licence under s59(1)(b) of the Act. I also find that s59(1)(a) of the Act contemplates the granting of an ordinary reconnaissance licence and that that provision cannot be relied upon by a person who is not a holder of a reconnaissance licence to apply for and be granted an exclusive reconnaissance licence.</p> <p> </p> <p><u>Costs</u></p> <p>[26] As between the applicant and the second respondent, costs must follow the event. The position of the second respondent is somewhat different. The first respondent, the <em>Minister of Mines &amp; Energy</em>, is the maker of the decision which is sought to be reviewed and set aside. The conduct of the first respondent and his officials is a source for concern. It is common cause that after the applicant submitted its application for ERL 79 on forms provided by the Ministry for the purpose, it took the Ministry 11½ months to inform the applicant that its application was not successful. The applicant, in writing, enquired about progress of the application on four different occasions. Not only did it not receive a reply to the queries, but the first respondent’s officials did not advise it that its application was legally defective.</p> <p> </p> <p>[27] The applicant was informed on 13 June 2006 that its application was unsuccessful. Immediately, the applicant asked for reasons and directed several reminders to first respondent for reasons. Those reasons were forthcoming only two months later (on 14 August 2006) after threats were made of litigation. Not only that, the reasons provided on 14 August 2006 made no mention whatsoever of the ground on which the first respondent has now successfully resisted the applicant’s challenge to the first respondent’s decision making, or the conceded ground pertaining to s59(1)(b). To crown it all, a raft of the reasons given in the letter of 14 August 2006 were admitted later to be <em>‘inaccurate’</em>. The ground on which the first respondent now succeeds was raised for the first time in the first respondent’s answering affidavit which was filed of record on 15 June 2007.</p> <p> </p> <p>[28] Mr. Smuts asked me to have regard to this conduct of the first respondent which, in his submission, deserves censure by denying first respondent his costs up to the point when the decisive law point was raised.</p> <p> </p> <p>[29] Apportionment of costs is a matter in the discretion of the Court but it must be done judicially. I have considered the matter carefully, including all the unexplained delays by the first respondent, shown in the papers, in handling the applicant’s application for ERL 79, and the failure to provide reasons as soon as possible after they were asked for. It is also worthy of special mention that annexure JH14 (the Ministry’s internal assessment sheet of ERL79 application) to the applicant’s Hoffmann’s affidavit shows that the officials of the first respondent who are responsible for the administration of the Act had actually made a positive recommendation of ERL 79 application to first respondent. All these factors, in the exercise of my discretion, are sufficient to deny the first respondent his costs up to the point when the decisive point was raised.</p> <p> </p> <p>[30] The <em>first -principle</em> that a successful litigant should ordinarily get his costs is not lost on me, but it is important that a clear message is given that those who hold public office should in the conduct of public affairs act in a manner that is accountable and transparent. Denying the first respondent his costs up to the point when the decisive law point was raised is intended to mark disapproval of his and his official’s conduct to the contrary. I am, however, not prepared to go beyond 15 June 2007 in denying applicant his costs because, had the applicant properly considered the law point after it was raised, the litigation should really have been discontinued. The first respondent is therefore entitled to his costs after 15 June 2007.</p> <p> </p> <p>[31] In the result:</p> <p> </p> <p>(1) The application is dismissed;</p> <p> </p> <p>(2) with costs, in the case of second respondent - including the costs of two instructed counsel;</p> <p> </p> <p>(3) with costs, in the case of first respondent - including the costs of one instructed counsel but only from 15 June 2007 until the hearing of the matter.</p> <p> </p> <p><strong>_______________</strong></p> <p>DAMASEB, JP</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>ON BEHALF OF THE APPLICANT: Mr D F Smuts SC</p> <p> </p> <p>Instructed By: Lorentz Angula Inc.</p> <p> </p> <p> </p> <p>ON BEHALF OF THE 1<sup>ST</sup> RESPONDENT: Mr H J Oosthuizen</p> <p>Instructed By: Government-Attorney</p> <p> </p> <p>ON BEHALF OF THE 2<sup>ND</sup> RESPONDENT: Mr R Heathcote</p> <p>Assisted by: Mr A W Corbett</p> <p> </p> <p>Instructed By: Theunissen, Louw &amp; Partners</p> <p> </p> <p>ON BEHALF OF THE 3<sup>RD</sup> RESPONDENT: No appearance</p> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-75e829444349afc8fa595b594b2d98eaabd155e8c93f6b0b4b10972843b2fee0"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p> </p> <p>CASE NO.: (P) A 2328/2006</p> <p> </p> <p><em><u>SUMMARY</u></em></p> <p> </p> <p>TUMAS GRANITE CC versus THE MINISTER OF MINES &amp; ENERGY &amp; 2 (TWO) OTHERS</p> <p> </p> <p> </p> <p> </p> <p><strong>DAMASEB, JP</strong></p> <p> </p> <p> </p> <p>26/02/2008</p> <p><u>STATUTORY INTERPRETATION</u>:</p> <p> </p> <p> </p> <ul><li> <p><u>Minerals (Prospecting &amp; Mining) Act, 33 of 1992: s59(1)(a) &amp; (b), and s62(1)</u></p> </li> </ul><p> </p> <p> </p> <ul><li> <p>Whether permissible to grant an exclusive reconnaissance licence to a non-holder of a reconnaissance licence?</p> </li> </ul><p> </p> <ul><li> <p>Whether a side note in a statute can be used in the interpretation of a statutory provision?</p> </li> </ul><p> </p> <ul><li> <ul><li> <p><u>Held</u>:</p> </li> </ul></li> </ul><p> </p> <ul><li> <p>Not competent to grant an exclusive reconnaissance licence to a non-holder of a reconnaissance licence.</p> </li> </ul><p> </p> <ul><li> <p>Side note to a statutory provision not a safe guide to interpretation of statute.</p> </li> </ul><p> </p> <ul><li> <ul><li> <p><u>Costs</u>:</p> </li> </ul></li> </ul><p> </p> <p>Successful litigant can be denied costs because of its / his conduct. Important for public officials to act in a manner that is accountable &amp; transparent: failure to do so attracting adverse costs order.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>CASE NO.: (P) A 328/2006</p> <p> </p> <p>IN THE HIGH COURT OF COURT OF NAMIBIA</p> <p> </p> <p>In the matter between:</p> <p> </p> <p>TUMAS GRANITE CC APPLICANT</p> <p> </p> <p>and</p> <p> </p> <p><a name="DDE_LINK1" id="DDE_LINK1"></a> THE MINISTER OF MINES &amp; ENERGY 1<sup>ST</sup> RESPONDENT</p> <p> </p> <p>WALVIS GRANITE (PTY) LTD 2<sup>ND</sup> RESPONDENT</p> <p> </p> <p>CAPRIVI MARBLE AND GRANITE (NAMIBIA)</p> <p>(PTY) LTD 3<sup>RD</sup> RESPONDENT</p> <p> </p> <p> </p> <p>CORAM: DAMASEB, JP</p> <p> </p> <p>Heard: 18<sup>th </sup>February 2008</p> <p> </p> <p>Delivered: 26<sup>th</sup> February 2008</p> <p>________________________________________________________________________</p> <p><u>JUDGMENT</u></p> <p> </p> <p><u>DAMASEB, JP</u>:</p> <p> </p> <p>[1] This is a review application in terms of Rule 53 of the Rules of the High Court. In a notice of motion dated 6 December 2006, the applicant sought the following relief:</p> <p>“<strong>1. Reviewing and correcting or setting aside the decision taken by the first respondent on the 1</strong><sup>st</sup> September 2005 to grant EPL 3394 to the second respondent;</p> <p>2. In the alternative to prayer 1 above, that the above decision by the first respondent be declared null and void as being in conflict with Article 18 of the Constitution of the Republic of Namibia and be set aside on that basis;</p> <p> </p> <p>3. That ERL-79 be awarded to the applicant as the successful applicant for such licence;</p> <p> </p> <p>4. That the costs of this application shall be borne by the first respondent save in the event of any of the other respondents opposing the application in which event the costs of this application shall be borne by the first respondent and those respondents opposing the application jointly and severally, the one paying the other to be absolved;</p> <p> </p> <p>5. Granting such further or alternative relief as the above Honourable Court may deem fit.”</p> <p> </p> <p> </p> <p>[2] The applicant applied for an exclusive reconnaissance licence to the first respondent. That application was received on 27 May 2005. While the applicant’s application was pending, the second respondent applied for an exclusive prospecting licence in respect of the same area. The second respondent’s application was granted on 1 September 2005, while that of the applicant was refused – a fact communicated to the applicant only on 13 June 2006, by letter dated 26 May 2006.</p> <p> </p> <p> </p> <p>[3] The first and second respondents oppose the relief sought, while the third respondent has not entered appearance to oppose. The first and second respondents have raised several points <em>in limine. </em>Both maintain that there was an unreasonable delay on the part of the applicant to launch the review application and that this Court should dismiss the application on that ground alone. The first respondent also raises the issue that the applicant has no standing because as a non-holder of reconnaissance licence, it could not have applied for an exclusive reconnaissance licence; while the second respondent says that there is non-joinder of the <em>Mining Commissioner</em> and the <em>Chairperson of the Minerals Board</em>. Second respondent disputes the existence of the applicant, or that the application is authorized.</p> <p> </p> <p>[4] At the hearing of the matter, the parties agreed to argue only the issue of standing as raised by the first respondent - which concerns a proper construction to be placed on section 59(1)(a) and (b), read with s62(1) of the <em>Minerals (Prospecting and Mining) Act</em>, 33 of 1992 (hereafter the Act), it being common ground amongst the parties that if the issue is decided against the applicant, that would be the end of the entire application.</p> <p> </p> <p>[5] The following facts are common cause. On 27 May 2005 the applicant submitted an application for an <em>exclusive reconnaissance licence (ERL79) </em> for dimension stone group of minerals <em>‘in terms of s59(1)(b)’</em> of the Act. The applicant admits it was then not the holder of a reconnaissance licence. The ERL 79 application was received on 27 May 2005 by the officials of the first respondent. On 13 June 2006 (11½ months after submitting its ERL 79), the applicant was advised that its application was not successful.</p> <p> </p> <p>[6] Upon being informed that the application was unsuccessful, the applicant wrote a letter to the first respondent on 13 June 2006 asking for reasons for the decision.</p> <p> </p> <p>[7] On 14 August 2006, the first respondent wrote a long letter to the applicant in which he sets out the reasons for refusing the applicant’s application for the ERL 79. In that letter the first respondent gave the following <em>‘main’</em> reasons for refusing the applicant’s ERL 79 application:</p> <p> </p> <p>(a) the applicant already held several dimension stone licences covering an area of 15 000 ha which made the applicant guilty of land-locking;</p> <p>(b) the applicant was taking too long to explore its licences and did not apply for mining licences;</p> <p>(c) the applicant did not have sufficient financial resources to work on ERL 79 and was therefore looking for state funds for the purpose;</p> <p>(d) the applicant made discriminatory remarks towards government officials;</p> <p>(e) that first respondent was not required by s125 of the Act to grant applications in the order they were lodged</p> <p>(f) the applicant should ideally apply for an exclusive prospecting licence for dimension stone.</p> <p> </p> <p>[8] It has now turned out that, on first respondent’s own admission, some of these reasons are ‘<em>inaccurate’</em>. In his answering affidavit in opposition to the relief sought by the applicant, the first respondent states that the applicant, by its own admission, applied for an exclusive reconnaissance licence for dimension stone <em>‘as contemplated in s59(1)(b)’</em> of the Act when it was not the holder, again by its own admission, of a reconnaissance licence. This, the first respondent says, is not sanctioned by the Act and there was therefore no valid application for an exclusive reconnaissance licence before the first respondent which could be granted or refused.</p> <p> </p> <p>[9] In the replying affidavit, the applicant denies that an application for an exclusive reconnaissance licence by a non-holder of a reconnaissance licence is not competent. In oral argument however, Mr Smuts SC conceded on behalf of the applicant that since the applicant was not a holder of a reconnaissance licence when it applied for ERL 79, it could not have applied for an exclusive reconnaissance licence in terms of s59(1)(b); but that an exclusive reconnaissance licence was competent under s59(1)(a) of the Act and that the reference to s59(1)(b) was erroneous. Messrs Oosthuizen and Heathcote for the first and second respondents respectively, retort that s59(1)(a) only authorizes the granting of a reconnaissance licence <em>simpliciter</em> and not an exclusive reconnaissance licence. Mr Smut’s counter argument was that reconnaissance licences are granted under s62 (1) and that s59, as shown by its side note which reads <em>‘Exclusive rights to carry on reconnaissance operations licences’</em> deals only with exclusive reconnaissance licences and that, for that reason, the licence envisaged in s59 (1) (a) is an exclusive reconnaissance licence and not an ordinary reconnaissance licence.</p> <p> </p> <p> </p> <p>[10] Mr. Smuts did not deal with this issue in the heads of argument because, throughout, the applicant had maintained that its application was <em>‘in terms of s59 (1) (b)’</em>. After hearing oral argument on 18 January 2008, I reserved judgment and invited counsel for the parties to submit further written submissions on or before 25 February, if they wanted to, in order to elaborate on the point of law that I am being asked to decide. The applicant and second respondent submitted further submissions to which I have had regard.</p> <p> </p> <p>[11] As I stated before, the applicant now concedes that as a non-holder of a reconnaissance licence, it could not have applied for an exclusive reconnaissance licence under s59 (1) (b). This is what the section states:</p> <p> </p> <p> </p> <p>”<strong>59(1) Subject to the provisions of subsection (2), the Minister may, on application by –</strong></p> <p> </p> <p>(a) …</p> <p>(b) <u>the holder of a reconnaissance licence</u>, cause an endorsement to</p> <p>be made on such reconnaissance licence;</p> <p> </p> <p>by virtue of which an exclusive right is conferred upon such person …”</p> <p> </p> <p> </p> <p>[12] The concession is therefore properly made and that ends that party of the debate. I must now decide whether s59 (1) (a) authorizes the granting of an exclusive reconnaissance licence as contended by the applicant.</p> <p> </p> <p>[13] Part IX of the Act comprises <em>‘Provisions relating to reconnaissance licences’</em>. The first section in Part IX is 58. Subsection (1) thereof sets out the activities the holder of a reconnaissance licence is authorized to undertake, while subsection(2) sets out things a holder of a reconnaissance licence may not do. Subsection (3) then states that a reconnaissance licence does not confer on a holder of a reconnaissance licence any preferential right to any other licence while the reconnaissance licence exists. It also states that the Minister is not prevented from granting any other licence in respect of any mineral or group of minerals or any area of land in the reconnaissance area to which the licence relates.</p> <p> </p> <p>[14] That is the reason why the applicant wants an exclusive reconnaissance licence. It wants exclusivity which an ordinary reconnaissance licence does not confer. That exclusivity arises under s59 (1), in the words beginning with ‘by virtue’ after the semi-colon at the end of the sentence appearing at para (b).</p> <p> </p> <p>Section 59 reads as follows:</p> <p> </p> <p>“<strong>(1) Subject to the provisions of subsection (2), the Minister </strong>may, on application by –</p> <p> </p> <p>(a) a person applying for a reconnaissance licence, grant to such person a reconnaissance licence; or</p> <p>(b) the holder of the reconnaissance licence, cause an endorsement to be made on such reconnaissance licence;</p> <p> </p> <p><u>by virtue of which an exclusive right is conferred upon such person</u> to carry on in the reconnaissance area to which such reconnaissance licence relates, reconnaissance operations in relation to any mineral or group of minerals specified in such licence, if the Minister is on reasonable grounds satisfied that the extent of the reconnaissance operations to be carried out and the expenditure to be incurred in or in relation to the reconnaissance area justifies the grant of such exclusive right.”</p> <p> </p> <p><strong>[15] If the applicant’s alternative argument is to succeed, then it would mean that s59(1)(a) creates a special class of reconnaissance licence which, without more, attracts exclusivity and, therefore, not subject to the limitations of subsection (3) of s58 which I set out in para 13 of this judgment. In that case s59 (1) (a) would read as follows:</strong></p> <p> </p> <p>“<strong>Subject to the provisions of subsection (2), the Minister may, on application by-</strong></p> <p> </p> <p>(a) a person applying for a reconnaissance licence, grant to such person a reconnaissance licence;</p> <p> </p> <p>by virtue of which an exclusive right is conferred upon such person to carry on in the reconnaissance area to which such reconnaissance licence relates , reconnaissance operations in relation to any mineral or group of minerals specified in such licence , if the Minister is on reasonable grounds satisfied that the extent of the reconnaissance operations to be carried out and the expenditure to be incurred in or in relation to the reconnaissance area justifies the grant of such exclusive right.’</p> <p> </p> <p>The question is, is that what the legislator intended?</p> <p> </p> <p>[16] During oral argument, Mr. Smuts relied, in part, on the marginal note to s59 in support of his submission that the legislator so intended. In the supplementary heads of argument filed on 25<sup>th</sup> February 2008, Mr. Smuts, correctly, concedes that a marginal note is not to be had regard to in the interpretation of a statute. Mr. Smut’s argument is further predicated on the thesis that the power to grant an ordinary reconnaissance licence is contained in s62(1) and not in s59(1)(a), and that the legislator could not have intended the two provisions to do the same thing as one of them would then be superfluous. Mr Smuts also submitted that if there is ambiguity about s59(1)(a) i.e. whether it contemplates the granting of an exclusive reconnaissance licence or not, I must find that the provision does so provide, based on the fact that the first respondent and his officials had since the inception of the Act so interpreted it and granted exclusive reconnaissance licences to persons who applied therefor without holding any reconnaissance licence.</p> <p> </p> <p> </p> <p> </p> <p>[17] Section 62(1) states:</p> <p> </p> <p>“<strong>Subject to subsections (4) and (5) of section 48, the Minister shall </strong>upon the granting of an application for a reconnaissance licence, direct the Commissioner to issue to the person who applied for such reconnaissance licence, a reconnaissance licence on such terms and conditions as may be agreed as provided in the said subsections.”</p> <p> </p> <p> </p> <p>[18] Section 62(1) is remarkable in this sense: firstly, it requires that <em>‘upon the granting of an application’</em>, the Minister <em>‘shall’</em> direct the Mining Commissioner <em>‘to issue’ </em>a licence. The section thus draws a distinction between the act of <em>‘granting’ </em>an application for a reconnaissance licence and the act of <em>‘issuing’</em> a reconnaissance licence. The section is silent about the Minister’s discretionary power to grant ‘an application’ for a reconnaissance licence. It certainly assumes that the Minister exercises a power to ‘<em>grant</em>’ under another provision. Had s59 (1) (a) not existed – note that in it, it is said the Minister <u>may</u> (which denotes a discretionary power) upon application by <u>a person</u> <u>grant</u> – and the only provision which allowed the Minister to grant a reconnaissance licence was s62 (1) as contended by the applicant, on what basis could the Minister have refused an application for a reconnaissance licence? That sections 59(1) (a) and 62(1) complement each other is, therefore, obvious. My point here is that the word ‘<em>may</em>’ is absent in s62 (1) and does not precede the words ‘<em>upon the granting’ </em>in that provision, while it is present in s59 (1) and precedes the word ‘<em>grant</em>’ in (a). The significance of that is that where the legislature does not want the Minister to enjoy discretionary power in granting a licence, it says so specifically ( vide s69(1)(a)&amp;(b);s79(2); s92(1)(a)&amp;(b)). Remarkably sections 59 and 62 follow that pattern.</p> <p> </p> <p>[19] In my view, the scheme and context of the Act supports the conclusion that what is referred to in s59(1)(a) is an ordinary reconnaissance licence , which has the attributes contemplated in s58(1), the requirements for application in s60, the disqualifications in s61; and to be issued by the <em>Mining Commissioner</em> under s62(1).</p> <p> </p> <p>[20] Although remarkable in the sense that I have pointed out, s59 (1) (a) is not unique. Mr. Heathcote correctly submitted that the following provisions follow the same scheme and pattern as ss58-62, in the sense that the power to grant the licence, and the Minister’s direction to the Mining Commissioner to issue the licence after the Minister had granted it, are in different provisions which must be read as complementing each other. I will illustrate:</p> <p>“PART X</p> <p> </p> <p>Provisions relating to exclusive prospecting licences</p> <p> </p> <p> </p> <p>Rights of holders of 67. (1) Subject to the provisions of subsection (2)</p> <p>Exclusive prospecting and the other provisions of this Act, the</p> <p>licences. holder of an exclusive prospecting licence</p> <p>shall be entitled -</p> <p> </p> <p>(a) to carry on prospecting operations …</p> <p>(b) to remove any mineral or group of minerals … …</p> <p>(2) The provisions of subsection (1) shall not be construed as –</p> <p>(a) conferring on the holder of an exclusive prospecting licence any preferential right to any other licence in relation to any mineral or group of minerals, other than a mineral or group of minerals to which such exclusive prospecting licence relates, during the currency or on expiry of such exclusive prospecting licence;</p> <p> </p> <p>Exercise of powers by 69. (1) Subject to the provisions of this section,</p> <p>Minister to grant or refuse the Minister -</p> <p>exclusive prospecting licences.</p> <p>(a) <u>shall</u>, in the case of an application for an exclusive prospecting licence by the holder of a reconnaissance licence to whom an exclusive right has been conferred in terms of section 59, subject to the provisions of sections 48(4) and (5) and 49, <u>grant such application if</u> such application relates to an area of land and a mineral or group of minerals to which such exclusive right relates; or</p> <p> </p> <p>(b) <u>may</u>, in the case of any other application for an exclusive prospecting licence, subject to the provions of sections 48(4) and (5) and 49, <u>grant or refuse such application</u>.</p> <p> </p> <p>Issue of exclusive prospecting 70. (1) Subject to subsections (4) and (5) of section 48,</p> <p>licences. the Minister shall, <u>upon the granting of an application for an exclusive prospecting licence, direct the Commissioner to issue to the person </u>who applied for such licence, an exclusive prospecting licence on such terms and conditions as may be agreed upon as provided in the said sub-sections.</p> <p> </p> <p>(2) The provisions of section 62 shall apply <em>mutatis mutandis </em>in relation to an exclusive prospecting licence.</p> <p> </p> <p> </p> <p>PART XI</p> <p> </p> <p>Provisions relating to mineral deposit retention licences</p> <p> </p> <p> </p> <p>Rights of holders of 77. (1) Subject to the provisions of subsection (2)</p> <p>mineral deposit retention the other provisions of this Act, the</p> <p>licences. holder of mineral deposit retention licences</p> <p>shall be entitled -</p> <p> </p> <p>(a) to retain the retention area to …</p> <p>(b) to carry on … (c) to remove any mineral or group of minerals …</p> <p> </p> <p>Persons who may apply 78. Notwithstanding the provisions of section 48, no</p> <p>for mineral deposit retention person shall apply …</p> <p>licences.</p> <p> </p> <p>Application for mineral 79. An application by any person for a mineral deposit retention licences. deposit retention licence –</p> <p> </p> <p>(a) shall contain -</p> <p>…</p> <p> </p> <p>(2) The Minister <u>shall not refuse to grant</u> an application for a mineral deposit retention licence on any grounds contemplated in subsection (1)(b), unless the Minister –</p> <p> </p> <p>(a) has by notice in writing informed such holder of his or her intention to so refuse such application –</p> <p>…</p> <p>(b) has taken into consideration any representations made by such person.</p> <p> </p> <p> </p> <p>Issue of mineral deposit 81. (1) Subject to subsections (4) and (5) of section 48,</p> <p>retention licences. the Minister shall, <u>upon the granting of an</u></p> <p><u>application for a mineral deposit retention licence, direct the Commissioner to issue</u> to the person who applied for such licence, a mineral deposit retention licence on such terms and conditions as may be agreed upon as provided in the said subsections.</p> <p> </p> <p>(2) The provisions of section 62 shall apply <em>mutatis mutandis </em>in relation to a mineral deposit retention licence.</p> <p> </p> <p>PART XII</p> <p> </p> <p> </p> <p>Provisions relating to mining licences</p> <p> </p> <p> </p> <p>Rights of holders of 90. (1) Subject to the provisions of subsection (2)</p> <p>mining licences. and the other provisions of this Act, the</p> <p>holder of a mining licence shall be entitled -</p> <p> </p> <p>(a) to carry on mining operations …</p> <p>…</p> <p>Exercise of powers of 92. (1) The Minister -</p> <p>Minister to grant or refuse</p> <p>mining licences. (a) <u>shall</u> in the case of an application for mining</p> <p>licence by –</p> <p>(i) the holder of a reconnaissance licence to whom an exclusive right has been conferred in terms of section 59;</p> <p> </p> <p>(ii) the holder of an exclusive prospecting licence;</p> <p> </p> <p>(iii) the holder of a mineral desposit retention licence; or</p> <p> </p> <p>(iv) the holder of a mining claim,</p> <p> </p> <p>subject to the provisions of subsections (2) and (4) of this section, <u>grant such application</u>, if such application relates to an area of land and a mineral or group of minerals to which such exclusive right or mineral deposit retention licence or the claim area in question relates;</p> <p> </p> <p>(b) <u>may</u>, in the case of any other application for a mining licence, subject to the provisions of sub-sections (3) and (4) of this section, <u>grant or refuse such application</u>.</p> <p> </p> <p>(2) Notwithstanding the provisions of subsection (1)(a), the Minister shall not grant an application by an person for a mining licence –</p> <p>…</p> <p> </p> <p>Issue of mining licences 93. (1) Subject to subsections (4) and (5) of section 48,</p> <p>the Minister shall, <u>upon the granting of an application for a mining licence, direct the Commissioner to issue to</u> the person who applied for such licence, a mining licence on such terms and conditions as may be agreed upon as provided in the said subsections.</p> <p> </p> <p>(2) The provisions of section 62 shall apply <em>mutatis mutandis </em>in relation to a mining licence.’’</p> <p> </p> <p> </p> <p><strong>[21] That the interpretation of s59(1)(a) clamored for by the first and second respondents accords with the legislative intent is clear if one has regard to the above provisions and compare them with s59(1)(a)’s scheme, to wit:</strong></p> <p>“PART IX</p> <p> </p> <p>Provisions relating to reconnaissance licences</p> <p> </p> <p> </p> <p>Rights of holders of 58. (1) Subject to the provisions of this Act, a</p> <p>reconnaissance licences. reconnaissance licence shall authorize the holder of such licence -</p> <p> </p> <p>(a) to carry on reconnaissance operations in the reconnaissance area …</p> <p>…</p> <p>Exclusive rights to carry 59. (1) Subject to the provisions of subsection (2)</p> <p>on reconnaissance operations. the Minister <u>may</u>, on application by –</p> <p> </p> <p>(a) a person applying for a reconnaissance licence, <u>grant to such person a reconnaissance licence</u>; or</p> <p> </p> <p>(b) the holder of a reconnaissance licence, cause an endorsement to be made on such reconnaissance licence,</p> <p>…</p> <p>Applications for recon- 60. An application by any person for a reconnais-</p> <p>naissance licences. sance licence –</p> <p> </p> <p>(a) shall contain –</p> <p> </p> <p>…</p> <p>62. (1) Subject to subsections (4) and (5) of section 48,</p> <p>the Minister shall <u>upon the granting of an application for a reconnaissance licence, direct the Commissioner to issue to the person</u> who applied for such reconnaissance licence, a reconnaissance licence on such terms and conditions as my be agreed upon as provided in the said subsections.”</p> <p> </p> <p>[22] Thus, looking at the language of s59 (1) (a), the scheme and context of the Act overall, and reading the various provisions in relation to one another, the intention of the legislator becomes clear. Where, as here, the intention of the legislator is clear from placing the natural meaning on the words used in the Statute , the Court must give effect thereto and not place a forced construction thereon which has the effect of defeating the intention of the lawmaker.</p> <p> </p> <p>[23] Why the draftsman chose the marginal note to s59 to read <em>“Exclusive rights to carry on reconnaissance operations”</em>,<em> </em>is a mystery. If ever there was any reason needed to justify the rule that a marginal note to a statutory provision is no safe guide in its interpretation, the present case provides it. Marginal notes are not regarded as part of the statute. (See: <em>Government of the Republic of Namibia and another v Cultura 2000 and another</em> 1994 (1) SA 407 (NmS) at 425G; 1993 NR 328 at 347 E-F .) As De Villiers AJA said in <em>Durban Corporation v Estate Whittaker </em>1919 AD 195 at 201-2:</p> <p> </p> <p>“<strong>Under out system of legislation they are not considered or passed by the legislature.” </strong></p> <p> </p> <p>In <em>Chandler v DPP</em> [1964] AC 763, the House of Lords held that the marginal note <em>‘Penalties for spying’ </em>to s1 of the Official Secrets Act 1911, did not restrict the wide words of that section making it an offence for any person for any purpose prejudicial to the safety or the interests of the State to approach or be in the neighborhood of or enter any prohibited place. The offence, it was held, could be committed by political demonstrators who had no intention of spying. Lord Reid stated (at 789-90):</p> <p> </p> <p>“… <strong>in my view side notes cannot be used as an aid to construction. They are mere catchwords and I have never heard of it being supposed in recent times that an amendment to alter a side note could be proposed in either House of Parliament. Side notes in the original Bill are inserted by the draftsman … So side notes cannot be said to be enacted in the same sense as the long title or any part of the body of the Act.”</strong></p> <p> </p> <p><strong>(See also: <em>Union Government v Tonkin </em>1918 AD 533 at 544;<em> Rose’s Car Hire (Pty) Ltd v Grant</em> 1948 2 SA 466 (A) 474; <em>Rossouw v Sachs </em>1964 (2) SA 551 AD at 561 , and <em>Cornelissen v Universal Caravan Sales (Pty) Ltd</em> 1971 (3) SA 158 (A) 175A .)</strong></p> <p> </p> <p><strong>[24] That the legislature intended to make a distinction between the granting of a reconnaissance licence, and the issuing of it, is reinforced by the ‘<em>definitions’</em> section in the Act which defines a <em>‘reconnaissance licence’ </em>as <em>‘a licence issued under section 62 …’</em>. In my view, this demonstrates that no direction to issue a licence can be given and no licence can be issued under s62 (1), unless it was first granted under s59 (1) (a). On the other hand, a person who has been <em>‘granted’</em> a licence by the Minister under s59 (1) (a), cannot enforce it until issued by the Mining Commissioner under s62 (1). (Compare the <em>regime</em> created by the definition ‘n<em>on-exclusive prospecting licence’ </em>under s21, read with s18 (3) of the Act.) Looking at the provisions I have referred to<em>,</em> one discerns a common thread and harmony in the Act’s provisions which deal with the Minister’s discretionary power to grant or refuse applications for various licences - which cannot be disturbed by using the marginal note to s59 to hold that the section only deals with exclusive reconnaissance licences. That would be usurping the function of the legislature and defeating the statutory intention which is, with respect, unambiguous.</strong></p> <p> </p> <p>[25] I come to the conclusion therefore that only the holder of a valid reconnaissance licence may apply for and be granted an endorsement of exclusive reconnaissance rights on a reconnaissance licence under s59(1)(b) of the Act. I also find that s59(1)(a) of the Act contemplates the granting of an ordinary reconnaissance licence and that that provision cannot be relied upon by a person who is not a holder of a reconnaissance licence to apply for and be granted an exclusive reconnaissance licence.</p> <p> </p> <p><u>Costs</u></p> <p>[26] As between the applicant and the second respondent, costs must follow the event. The position of the second respondent is somewhat different. The first respondent, the <em>Minister of Mines &amp; Energy</em>, is the maker of the decision which is sought to be reviewed and set aside. The conduct of the first respondent and his officials is a source for concern. It is common cause that after the applicant submitted its application for ERL 79 on forms provided by the Ministry for the purpose, it took the Ministry 11½ months to inform the applicant that its application was not successful. The applicant, in writing, enquired about progress of the application on four different occasions. Not only did it not receive a reply to the queries, but the first respondent’s officials did not advise it that its application was legally defective.</p> <p> </p> <p>[27] The applicant was informed on 13 June 2006 that its application was unsuccessful. Immediately, the applicant asked for reasons and directed several reminders to first respondent for reasons. Those reasons were forthcoming only two months later (on 14 August 2006) after threats were made of litigation. Not only that, the reasons provided on 14 August 2006 made no mention whatsoever of the ground on which the first respondent has now successfully resisted the applicant’s challenge to the first respondent’s decision making, or the conceded ground pertaining to s59(1)(b). To crown it all, a raft of the reasons given in the letter of 14 August 2006 were admitted later to be <em>‘inaccurate’</em>. The ground on which the first respondent now succeeds was raised for the first time in the first respondent’s answering affidavit which was filed of record on 15 June 2007.</p> <p> </p> <p>[28] Mr. Smuts asked me to have regard to this conduct of the first respondent which, in his submission, deserves censure by denying first respondent his costs up to the point when the decisive law point was raised.</p> <p> </p> <p>[29] Apportionment of costs is a matter in the discretion of the Court but it must be done judicially. I have considered the matter carefully, including all the unexplained delays by the first respondent, shown in the papers, in handling the applicant’s application for ERL 79, and the failure to provide reasons as soon as possible after they were asked for. It is also worthy of special mention that annexure JH14 (the Ministry’s internal assessment sheet of ERL79 application) to the applicant’s Hoffmann’s affidavit shows that the officials of the first respondent who are responsible for the administration of the Act had actually made a positive recommendation of ERL 79 application to first respondent. All these factors, in the exercise of my discretion, are sufficient to deny the first respondent his costs up to the point when the decisive point was raised.</p> <p> </p> <p>[30] The <em>first -principle</em> that a successful litigant should ordinarily get his costs is not lost on me, but it is important that a clear message is given that those who hold public office should in the conduct of public affairs act in a manner that is accountable and transparent. Denying the first respondent his costs up to the point when the decisive law point was raised is intended to mark disapproval of his and his official’s conduct to the contrary. I am, however, not prepared to go beyond 15 June 2007 in denying applicant his costs because, had the applicant properly considered the law point after it was raised, the litigation should really have been discontinued. The first respondent is therefore entitled to his costs after 15 June 2007.</p> <p> </p> <p>[31] In the result:</p> <p> </p> <p>(1) The application is dismissed;</p> <p> </p> <p>(2) with costs, in the case of second respondent - including the costs of two instructed counsel;</p> <p> </p> <p>(3) with costs, in the case of first respondent - including the costs of one instructed counsel but only from 15 June 2007 until the hearing of the matter.</p> <p> </p> <p><strong>_______________</strong></p> <p>DAMASEB, JP</p> <p> </p> <p> </p> <p> </p> <p> </p> <p>ON BEHALF OF THE APPLICANT: Mr D F Smuts SC</p> <p> </p> <p>Instructed By: Lorentz Angula Inc.</p> <p> </p> <p> </p> <p>ON BEHALF OF THE 1<sup>ST</sup> RESPONDENT: Mr H J Oosthuizen</p> <p>Instructed By: Government-Attorney</p> <p> </p> <p>ON BEHALF OF THE 2<sup>ND</sup> RESPONDENT: Mr R Heathcote</p> <p>Assisted by: Mr A W Corbett</p> <p> </p> <p>Instructed By: Theunissen, Louw &amp; Partners</p> <p> </p> <p>ON BEHALF OF THE 3<sup>RD</sup> RESPONDENT: No appearance</p></span></div></div> </div> </div> Mon, 05 Oct 2020 15:01:40 +0000 Anonymous 9386 at http://namiblii.org Uffindell t/a Aloe Hunting Safaris v Government of Namibia and Others (PA 141 of 2000) [2009] NAHC 51 (20 April 2009); http://namiblii.org/na/judgment/high-court/2009/51 <span class="field field--name-title field--type-string field--label-hidden">Uffindell t/a Aloe Hunting Safaris v Government of Namibia and Others (PA 141 of 2000) [2009] NAHC 51 (20 April 2009);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/786" hreflang="und">EL</a></div> <div class="field__item"><a href="/taxonomy/term/279" hreflang="und">Judicial Review</a></div> <div class="field__item"><a href="/taxonomy/term/335" hreflang="und">Procedural Fairness</a></div> <div class="field__item"><a href="/taxonomy/term/593" hreflang="und">Locus standi in environmental litigation</a></div> <div class="field__item"><a href="/taxonomy/term/472" hreflang="und">Constitutional Interpretation</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 10/05/2020 - 15:00</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>Accordingly, the court dismissed the application for interdictory relief and made an order as to costs.</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.namiblii.org/files/judgments/nahc/2009/51/2009-nahc-51.pdf" type="application/pdf; length=228792">2009-nahc-51.pdf</a></span> </div> <div class="field__item"> <span class="file file--mime-application-rtf file--general"> <a href="https://media.namiblii.org/files/judgments/nahc/2009/51/2009-nahc-51.rtf" type="application/rtf; length=163340">2009-nahc-51.rtf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p> <u>ARTHUR FREDERICK UFFINDELL T/A ALOE HUNTING SAFARIS v GOVERNMENT OF NAMIBIA AND 4 OTHERS</u></p> <p> <u>CASE NO. (P) A. 141/2000 </u></p> <p>  </p> <p> 2009/04/20</p> <p>  </p> <p> Maritz, J.</p> <p>  </p> <p> <u>PRACTICE</u></p> <p> <u>CONSTITUTIONAL LAW</u></p> <p> <u>EVIDENCE</u></p> <p>  </p> <p> Practice - <em>Locus standi</em> – Common Law – aspect of procedural law – flexibility in allowing – “direct and substantial interest” – scope and ambit not capable of exact delineation –to be assessed with reference to circumstances of each case</p> <p>  </p> <p> Practise - <em>Locus standi</em> – Article 25(2) of Constitution – meaning of “aggrieved persons” – purposive approach to ensure enjoyment of the full measure of protection of fundamental rights entitled to – public interest character of rights protected – entitlement to relief to be assumed in assessing standing - approach to standing wider than under common law</p> <p>  </p> <p> Practice – different requirements for interim and final interdicts – differences in assessing facts at interim and final stage of proceedings discussed</p> <p>  </p> <p> Constitutional law – Article 10(2) – suspect classification – burden of proof to justify</p> <p>  </p> <p>  </p> <p> Constitutional law – Article 10(1) – right to equal treatment – mere differentiation permissible for persons not similarly situated – differentiation amounting to discrimination in pejorative sense – intelligible differentia - rational connection test</p> <p>  </p> <p> Constitutional law – principle of equality – differentiation made to redress disadvantage occasioned by earlier administrative decision – differentiation intended to redress disadvantage permissible</p> <p>  </p> <p> Constitutional law – Article 18 – right to administrative fairness and reasonableness – legitimate expectation to be heard – principle and objective application discussed</p> <p>  </p> <p> Evidence – burden of proof - Article 10(1) of Constitution – right to equal treatment - differentiation amounting to discrimination in pejorative sense – differentia not intelligible – no rational connection between measure and legitimate governmental objective</p> <p>  </p> <p>  </p> <p>  </p> <p> CASE NO.: (P) A. 141/2000</p> <p>  </p> <p> IN THE HIGH COURT OF NAMIBIA</p> <p> In the matter between:</p> <p> <strong>ARTHUR FREDERICK UFFINDELL t/a</strong></p> <p> <strong>ALOE HUNTING SAFARIS Applicant</strong></p> <p>  </p> <p> and</p> <p>  </p> <p> <strong>GOVERNMENT OF NAMIBIA First Respondent</strong></p> <p> <strong>MINISTER OF ENVIRONMENT AND TOURISM Second Respondent</strong></p> <p> <strong>MINISTER OF FINANCE Third Respondent</strong></p> <p> <strong>KENNETH MORRIS Fourth Respondent</strong></p> <p> <strong>BYSEEWAH HUNTING SAFARIS (PTY) LTD Fifth Respondent</strong></p> <p>  </p> <p>  </p> <p> <strong>CORAM: </strong><strong> MARITZ, J.</strong></p> <p> Heard on: 2001/03/05</p> <p> Order on: 2001/03/05</p> <p> Reasons on: 2009/04/</p> <p>  </p> <p>  </p> <p> <u><strong>REASONS</strong></u></p> <p> <u><strong>MARITZ, J.</strong></u>: [1] What follows are the reasons for the order in which the Court discharged a rule<em> nisi</em> earlier granted in favour of the applicant; dismissed the balance of his application for interdictory relief and ordered him to pay the respondents’ costs.</p> <p>  </p> <ol start="2"><li> <p> The cause of discontent between the litigants lies the sale of a trophy hunting concession in the Mamili National Park under the provisions of the Nature Conservation Ordinance, 1975 (the “Ordinance”). Limited and strictly regulated concessions of that nature had been approved in principle by Cabinet as a means to utilise wildlife resources on a sustainable manner in game parks and reserves on State land and to remove crop-raiding and problem animals in communal areas adjacent thereto. Moreover, an amendment to the Ordinance in 1996 allowed indigenous communities to establish conservancies on communal land and to obtain permits to hunt limited numbers of certain species of game thereon. The sale of those quotas to trophy hunters proved to be the most beneficial means of utilising of the rights granted under the permits: comparatively, it generated the highest income; it constituted an effective, economical and viable means to remove animals either too old to reproduce or approaching the end of their natural lives from game populations; the meat of hunted trophy game remained the property of the conservancy and could be distributed amongst its members as food and the income generated could be deposited in the Game Products Trust Fund for distribution to the relevant communal conservancies and Wildlife Counsels, to finance appropriate communal area developments and to compensate neighbouring communal farmers who had suffered damages caused by problem animals from adjacent game parks and reserves.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The sale of trophy hunting concessions in those areas by tender (during 1992-1994) and public auction (since 1995) had been an important stimulus and source of income for the rapidly developing and highly profitable trophy hunting industry. The applicant, a registered professional hunter trading under the name and style of Aloe Hunting Safaris, held successive concessions during the period 1994 - 1999. The sale of further concessions for the first 3 years of the new millennia were approved by Cabinet on 9 December 1999 and auctioned off on 9 March 2000 at Windhoek. The applicant was one of the bidders at the auction but his bid for a concession in the Mahango Game Park was unsuccessful. In the result, he was left without a trophy hunting concession on State land for the next three years and, as may be imagined, without the financial benefit he had hoped to gain from its exploitation.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Although he lost to a higher bidder, the applicant at least had the satisfaction of knowing that he had been accorded an equal opportunity to compete with others for hunting concessions at the auction. The fourth and fifth respondents were denied that opportunity. They had received invitations from the Ministry of Environment and Tourism to attend the auction and the fourth respondent, also a professional hunter and former concession holder, was keen to win a concession at the auction. He travelled on short notice from Outjo to partake in the auction at Windhoek - only to be informed by a certain Mr Beytel during the registration process immediately preceding the auction that he would not be allowed to either register or to bid at the auction. Beytel, a Deputy Director in the employ of the Ministry, told him that the decision was not his but had been taken by the Director of Resource Management in the Ministry. When he and Beytel enquired from the Director about her reasons for the decision, she told them that her decision was final and that she was not willing to discuss the matter any further. During a subsequent conversation, Beytel speculated that the decision might have been based on issues which had arisen in the course of a previous concession held by him. The fourth respondent’s assurances that those issues had been resolved with the Government Attorney long before the auction and his objections against exclusion, were to no avail: He was not allowed to bid at the auction - neither in his personal capacity nor on behalf of the fifth respondent.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Aggrieved by – what they believed to be - their unjustified and unlawful exclusion, they launched an urgent application in this Court to interdict implementation of the concessions sold at the auction pending the outcome of an application to review the decision which resulted in their exclusion; for a declarator that the impugned decision was unconstitutional; for an order that the agreements entered into pursuant to the sale by auction should be set aside and that the Ministry should be directed to auction the concessions afresh. The application cited the Government, the Minister of Environment and Tourism, the Director of Resource Management, the Permanent Secretary of the Ministry and the seven successful bidders as respondents. The founding papers alleged that the impugned decision was taken in violation of their fundamental right to equality; to fair administrative justice and to freely practice a profession or occupation and carry on a business. They succeeded in obtaining a rule <em>nisi</em> and interim interdict along the lines of the relief prayed for. Pending the return day of the rule, the Minister and the other cited officials in the Ministry consulted the Government Attorney and met with the legal representatives of the successful bidders. The consensus at that meeting was that the decision to exclude the fourth respondent from the auction was indeed unconstitutional and, for that reason, unlawful. In settlement of – what he accepted to be - a lost cause and to avoid further prejudice to the successful bidders (who were not to blame for the predicament occasioned by the decision), the Minister, acting upon a written recommendation of the Director: Resource Management and the Permanent Secretary in the Ministry, decided to make a further trophy hunting concession available in the Mamili National Park and to sell it by private treaty to the fourth respondent subject to the same conditions applicable to the other hunting concessions sold at the auction. In the negotiations that followed, the matter was settled on that basis subject to Treasury approval under the State Finance Act, 1991, which was obtained subsequently. For the sake of brevity, I shall hereunder refer to this application as the “Morris-application”</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Unfortunately, the settlement of one dispute - like cutting off one of the Hydra’s heads – spawned, in this instance, two more: the current application being one and an application brought by one Allan Cilliers being the other. The applicant feels himself aggrieved by the decision of the Minister to grant and sell a trophy hunting concession in the Mamili National Park to the fourth respondent by private treaty for, what he claimed to be, an “extremely low price”. The concession, he said, should have been offered for sale on auction in accordance with a “fixed policy and practise for many years”. The sale by private treaty in settlement of the issues in the Morris-application violated his right to equality protected under Article 10 of the Constitution; detracted from his right to fair administrative action under Article 18 thereof; impinged and prejudiced his right to practise his profession as a professional hunter protected under Article 21(2)(j); contravened the Tender Board Regulations; derogated from the legitimate expectation he had to be heard before deviating from the policy which had been followed for many years regarding the sale of concessions and, finally, was unjustified because there was no factual or legal basis for the settlement of the dispute in the first place.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The applicant applied, amongst others, on an urgent basis for – and obtained - a rule <em>nisi</em> and <em>interim</em> interdict in the following terms:</p> </li> </ol><p>  </p> <p> “1. A rule<em> nisi</em> is issued calling upon the respondents to show cause …, why-</p> <p>  </p> <ol><li> <ol><li> <p> the decision, taken by the first, second and third respondents to settle or approve the settlement of (the settled application) by selling and granting to the fourth or fifth respondent a trophy hunting concession in the Mamili National Park, should not be reviewed and set aside or, alternatively, should not be declared to be unconstitutional, invalid and unlawful;</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="2"><li> <p> the first and second respondents should not be interdicted from entering into, in consequence of the settlement referred to in paragraph 1.1, any agreement with the fourth or fifth respondent or from otherwise implementing the decision to so settle that matter by selling and granting a trophy hunting concession in the Mamili National Park or elsewhere to the fourth or fifth respondent;</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="3"><li> <p> the first, second and third respondents and, in the event of the fourth or fifth respondent opposing the application, the fourth and/or fifth respondent (as the case may be), should not to pay the costs of this application jointly and severally, the one paying the other to be absolved.</p> </li> </ol></li> </ol><p>  </p> <ol start="2"><li> <p> Pending the final adjudication of this application-</p> </li> </ol><p>  </p> <ol><li> <ol><li> <p> the first and second respondents are interdicted from entering into, in consequence of the settlement referred to in paragraph 1.1 above, any agreement with the fourth or fifth respondent or from otherwise implementing the decision to settle that matter by selling and granting a trophy hunting concession in the Mamili National Park or elsewhere to the fourth or fifth respondents;</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="2"><li> <p> the fourth and fifth respondents are interdicted from commencing any hunting activities in the Mamili National Game Park in consequence of the aforesaid settlement or any agreement entered into in terms of that settlement.”</p> </li> </ol></li> </ol><p>  </p> <ol start="2"><li> <p> At the outset of the rule <em>nisi</em>-proceedings, the respondents’ counsel challenged the applicant’s <em>locus standi</em> to bring this application. However, later in argument she informed the Court that the respondents did not object to the rule <em>nisi</em> being issued (albeit in a slightly amended form) subject to their right to resist confirmation thereof on the return day, <em>inter alia</em>, on the question of standing. At that stage of the proceedings, their objection was mainly against interdictory relief being granted in the interim.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Because standing was a threshold issue<sup><a class="sdfootnoteanc" href="#sdfootnote1sym" name="sdfootnote1anc" id="sdfootnote1anc"><sup>1</sup></a></sup> and the relief contemplated in the interim interdict would essentially be repeated - albeit in the form of a final interdict - had the rule <em>nisi</em> been made absolute on the return date, the Court had to decide thereon before it could consider the applicant’s entitlement to the rule and interim relief. It held that, on the papers filed during that stage in the proceedings, the applicant had the requisite standing to move the relief prayed for. By reserving their rights on standing, the issue remained alive and had to be finally decided on the return day after consideration of all the affidavits which had been filed in the application. The affidavits filed and discovery made after the rule had been issued did not add much to the issue of standing and, because it has not been pressed in argument on the return day, it will suffice for purposes of these reasons to capture the essence of the Court’s findings on the issue in its earlier judgment and, where necessary, expand thereon.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Initially, it was contended on behalf of the respondents by Ms Engelbrecht that the applicant had no <em>locus standi </em>to take issue with the Minister’s decision because he had no direct or substantial interest in the Morris-application. He was not cited as a party to it and, had he been, it would have been tantamount to a misjoinder. By parity of reasoning, she argued, he could not be said to have any interest in the settlement of that application – which he was, in effect, seeking to set aside in this application. The argument loses sight of one important consideration: Whereas the relief prayed for in the Morris-application was limited to prevent implementation of the sale of concessions at the auction pending judicial review of the decision to preclude the fourth and fifth respondents from participating, the subsequent settlement went well beyond that. It introduced an element that did not form part of the relief originally sought in the application, i.e. the sale by private treaty of a hunting concession to the fourth respondent in an area that had not been one of the concession areas available for auction. Had the terms of the settlement remained within the four corners of the relief prayed for, Mr Van der Byl SC argued on behalf of the applicants, they would not have had any quarrel with it or, for that matter, any standing to question it. It is precisely to the extent that the terms of the settlement went beyond the relief contemplated, that it impacted on the constitutional rights and legal interests of the applicant and had given them standing to bring this application.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> I agree with the distinction drawn by counsel, but it is only one of consequence if a rational connection is shown to exist between the challenged administrative action and the constitutional rights and legal interests of the applicant allegedly affected by it which, in a constitutional setting, must be sufficiently direct and substantial to confer upon the applicant the legal right to challenge it under Article 25(2) of the Constitution as an “aggrieved person”.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Under common law, the question of standing (in the sense of an actionable interest) has always been regarded as an incidence of procedural law. The assessment of the concept as an aspect of procedural (rather than substantive) law allows the Court a greater measure of flexibility<sup><a class="sdfootnoteanc" href="#sdfootnote2sym" name="sdfootnote2anc" id="sdfootnote2anc"><sup>2</sup></a></sup> in determining whether, given the facts of the particular matter, the substance of the right or interest involved and the relief being sought, <em>locus standi</em> has been established. Moreover, although the nature of the interest to be shown for standing is captured in the clipped phrase “direct and substantial”, the scope and ambit thereof are not capable of exact delineation<sup><a class="sdfootnoteanc" href="#sdfootnote3sym" name="sdfootnote3anc" id="sdfootnote3anc"><sup>3</sup></a></sup> by rules of general application which are cast in stone.<sup><a class="sdfootnoteanc" href="#sdfootnote4sym" name="sdfootnote4anc" id="sdfootnote4anc"><sup>4</sup></a></sup> Whether a litigant’s interest in the subject matter of the litigation justifies engagement of the Court’s judicial powers, must be assessed with regard to the peculiar facts and circumstances of each case. What will generally not suffice, is apparent from the illuminating judgment of Botha AJ on the issue of <em>locus standi </em>in <em>Jacobs en 'n Ander v Waks en Andere,</em> 1992 (1) SA 521 (A) at 533J – 534C<sup><a class="sdfootnoteanc" href="#sdfootnote5sym" name="sdfootnote5anc" id="sdfootnote5anc"><sup>5</sup></a></sup>: an interest which is abstract, academic, hypothetical or simply too remote<sup><a class="sdfootnoteanc" href="#sdfootnote6sym" name="sdfootnote6anc" id="sdfootnote6anc"><sup>6</sup></a></sup>. Considerations such as that the interest is “current”, “actual” and “adequate” are vital in assessing whether a litigant has standing in the circumstances of a case.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> These common law principles and the measure of flexibility they allow the Court is an important reference, but not the true criteria, for deciding standing when litigants claim that their fundamental rights and freedoms protected under the Constitution have been infringed, derogated from or diminished. Whilst it is accepted for purposes of this judgment on the basis of the <em>Dalrymple</em>-case<sup><a class="sdfootnoteanc" href="#sdfootnote7sym" name="sdfootnote7anc" id="sdfootnote7anc"><sup>7</sup></a></sup> that our law does not recognise standing on the basis of a citizen’s action to vindicate the public interest, the Court has relaxed the common law criteria to establish standing in appropriate circumstances. It has done so where the liberty of another individual is involved<sup><a class="sdfootnoteanc" href="#sdfootnote8sym" name="sdfootnote8anc" id="sdfootnote8anc"><sup>8</sup></a></sup> (although it has been regarded as more of an exception to the rule) and (in Britain) when it is necessary <em>ex debito justitiae</em><sup><a class="sdfootnoteanc" href="#sdfootnote9sym" name="sdfootnote9anc" id="sdfootnote9anc"><sup>9</sup></a></sup><em> </em>to curb an abuse of public power. But, it is especially within the context of the protection and promotion of human rights values after the new constitutional dispensation created on Independence, that a more purposive approach must be adopted to accord individuals and classes of individuals standing to enjoy the full benefit of their entrenched rights and to effectively maintain and enhance the values expressed therein.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Albeit in a different constitutional dispensation, this is also the approach which has been adopted by the majority of the Constitutional Court in South Africa. Under s. 7(4)(a) of the South African Constitution, a person referred to in paragraph (b) thereof is entitled to apply to a competent court of law for appropriate relief (which may include a declaration of rights) when “an infringement of or threat” to any fundamental right entrenched in the Constitution is alleged. In <em>Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others</em>, 1996 (1) SA 984 (CC) at 1082G-H] Chaskalson P expressed the views he held on the approach to <em>locus standi</em> under the South African Constitution as follows at par [165]:</p> </li> </ol><p>  </p> <p> “Whilst it is important that this Court should not be required to deal with abstract or hypothetical issues, and should devote its scarce resources to issues that are properly before it, I can see no good reason for adopting a narrow approach to the issue of standing in constitutional cases. On the contrary, it is my view that we should rather adopt a broad approach to standing. This would be consistent with the mandate given to this Court to uphold the Constitution and would serve to ensure that constitutional rights enjoy the full measure of the protection to which they are entitled….”.</p> <p>  </p> <p> The reasons why a broader approach should be adopted are also to be found in the reasoning of O’Regan J in the same case at par [229] on p.1103E-H of the same judgment:</p> <p>  </p> <p> “This expanded approach to standing is quite appropriate for constitutional litigation. Existing common-law rules of standing have often developed in the context of private litigation. As a general rule, private litigation is concerned with the determination of a dispute between two individuals, in which relief will be specific and, often, retrospective, in that it applies to a set of past events. Such litigation will generally not directly affect people who are not parties to the litigation. In such cases, the plaintiff is both the victim of the harm and the beneficiary of the relief. In litigation of a public character, however, that nexus is rarely so intimate. The relief sought is generally forward-looking and general in its application, so that it may directly affect a wide range of people. In addition, the harm alleged may often be quite diffuse or amorphous. Of course, these categories are ideal types: no bright line can be drawn between private litigation and litigation of a public or constitutional nature. Not all non-constitutional litigation is private in nature. Nor can it be said that all constitutional challenges involve litigation of a purely public character: a challenge to a particular administrative act or decision may be of a private rather than a public character. But it is clear that in litigation of a public character, different considerations may be appropriate to determine who should have standing to launch litigation….”</p> <p>  </p> <ol start="2"><li> <p> It may be argued that s.7(4)(a) of the South African Constitution – especially if read with par (b) thereof – has been cast in broader terms than Article 25(2) of our Constitution which provides:</p> </li> </ol><p>  </p> <p> “Aggrieved persons who claim that a fundamental right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled to approach a competent Court to enforce or protect such a right or freedom …”</p> <p>  </p> <p> That, however, does not detract from the underlying principle that this Court, in giving effect to its constitutional duty under Article 5 to respect and uphold the fundamental rights and freedoms enshrined in Chapter 3 of the Constitution, must also interpret Article 25 (which is part of Chapter 3 and the rights contemplated thereunder) in a broad, liberal and purposive way – as this Court and the Supreme Court have held on numerous occasions in respect of other Articles in the same Chapter.<sup><a class="sdfootnoteanc" href="#sdfootnote10sym" name="sdfootnote10anc" id="sdfootnote10anc"><sup>10</sup></a></sup> It has been held that “aggrieved persons” do not include those who sue on the basis of derivative rights (such as a sub-contractor or sub-lessee)<sup><a class="sdfootnoteanc" href="#sdfootnote11sym" name="sdfootnote11anc" id="sdfootnote11anc"><sup>11</sup></a></sup> but judicial precedent on the interpretation of that phrase is limited and will undoubtedly require further judicial elaboration in future to determine which persons and classes of persons (or their representatives) are accorded the right to seek protection or enforcement of their fundamental rights from the Courts. With the cautionary remarks of Dumbutshena AJA in <em>Kauesa v Minister of Home Affairs,</em><sup><em><a class="sdfootnoteanc" href="#sdfootnote12sym" name="sdfootnote12anc" id="sdfootnote12anc"><sup>12</sup></a></em></sup> that “(c)onstitutional law in particular should be developed cautiously, judiciously and pragmatically if it is to withstand the test of time” in mind, I shall, in the analysis what follows go no further than the exigencies of this case require.</p> <p>  </p> <ol start="2"><li> <p> Whereas the applicant does not stand in a “direct administrative-law relationship” with the first, second and third respondents (such as the one created by the settlement between the second and fourth respondents), he claimed that his rights and interests flowing from his general relationship with that authority had been directly affected by the agreement between those respondents. “This will be the case, for example, where a concession is granted by one person and the interests of another are affected by the granting of the concession”.<sup><a class="sdfootnoteanc" href="#sdfootnote13sym" name="sdfootnote13anc" id="sdfootnote13anc"><sup>13</sup></a></sup></p> </li> </ol><p>  </p> <ol start="2"><li> <p> The Court cannot lose sight of the fact that the concession allows for the exploitation of natural resource falling in the public domain. There is a pressing environmental and economical need that those resources should be managed responsibly and, ultimately, for the public benefit. To that end, it has been established by the applicant that a policy was developed and applied by the first respondent for the sustainable exploitation of game on State land in the form of concessions to which a particular category of persons (i.e. professional hunters) had equal access. That policy, intended to bring about administrative fairness and transparency in the management of that natural resource, it appears, has been consistently applied since 1992. I do not need to express any views on the 1998 affirmative action grant except to point out that affirmative action is, in its essence, not a concept separate and distinct from the equality-principle entrenched in our Constitution - it is an integral part thereof aimed at bringing about true equality of historically disadvantaged and minority groups. The Government has clearly demonstrated its commitment to redress social, economical and educational imbalances in Namibian society arising out of past discriminatory laws or practices by adopting and implementing a policy of affirmative action. Inasmuch as the 1998 affirmative action grant might have constituted a deviation from the established practise regarding the granting of concessions, it may well have been done in compliance with that policy and the express empowering provisions contained in Article 23 of the Constitution.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The application of the policy and practise in relation to concessions have been reaffirmed in December 1999 when the second respondent recommended to Cabinet (and Cabinet apparently approved) that trophy hunting concessions for the 3 years that follow should be sold “by auction to Namibian registered persons who comply with the conditions for sale”. Given, what at least <em>prima facie</em> appears to be a consistent practise of allowing persons falling within the aforementioned category to have equal access to the acquisition of concessions, those persons have an interest - more immediate and substantial than those of the public in general - to be aggrieved if the second respondent unlawfully deviates from it. I must note here in passing that, in deciding the question of the applicant’s standing, the Court has to assume that the administrative action, which is the subject matter of the review, is a nullity<sup><a class="sdfootnoteanc" href="#sdfootnote14sym" name="sdfootnote14anc" id="sdfootnote14anc"><sup>14</sup></a></sup>. When the second respondent purports to act on an administrative decision which is assumedly void <em>ab initio </em>by unlawfully granting a hunting concession by private treaty to the fourth respondent, the applicant and other persons similarly qualified as professional hunters who manifested an interest in obtaining trophy hunting concessions have reasonable grounds to feel themselves aggrieved for having been denied the opportunity to compete on an equal footing for the concession. In seeking a review of that decision, they would not assert their grievances as mere taxpayers or citizens generally, but as registered professional hunters with a special interest in the management and sustainable utilisation of that public resource; as persons who have previously held trophy hunting concessions and who, by participation in the earlier auction, have manifested an interest in again competing for one on an equal footing with others similarly situated. Even if the phrase “aggrieved persons” is not to be applied on the basis of a subjective assessment - and I expressly refrain from finding that, on a purposive approach, it may not be so understood - but falls to be assessed by the more stringent standard of reasonableness, I am satisfied that a reasonable person in the applicant’s position would have had cause to be aggrieved and to claim that his or her fundamental rights have been infringed or threatened by the assumedly unlawful decision of the second respondent. For these reasons, the applicant had adequate cause to be aggrieved and to claim enforcement or protection of his fundamental rights as contemplated in Article 25(2) of the Constitution. It is on this premise that the Court proceeded to consider the merits of the application and made the order it did.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The enquiry into the merits of the application seeks to ascertain whether the unlawfulness of the administrative action, which has been assumed in assessing the applicant’s <em>locus standi</em>, has indeed been established, regard being had to the requirements for a final interdict, the incidence of <em>onus </em>and the approach to be adopted by the Court in evaluating the evidence as a whole and deciding on the factual disputes raised in the affidavits of the contesting litigants in particular.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> It is common cause that the practices and policies around trophy hunting concessions on State land were developed around the provisions of sections 28(1)(a), 36(1)(a) and 78(f) of the Ordinance. They provide as follows:</p> </li> </ol><p>  </p> <p> “”28. (1)(a) Subject to the provisions of Chapter IV no person shall, without the written permission of the Minister, hunt any huntable game, … or exotic game or any other wild animal on any land, including communal land, owned by the Government of the Territory or a representative authority.</p> <p>  </p> <p> 36. (1)(a) Notwithstanding anything to the contrary in this Ordinance contained, the Minister may allow any person from any country or territory under a permit granted by the Minister to hunt species of game, and the number (but not exceeding two) of each such species determined by the Minister and mentioned in such permit, in the territory for the sake of trophies.”</p> <p>  </p> <p> “78. The Minister may –</p> <p> (a) …</p> <p> (f) take the measures which it may deem necessary or desirable for the purchase and sale of wild animals, exotic game …, whether alive or dead;”</p> <p>  </p> <p> The constitutionality of these provisions is not in issue. It is also not contended by the applicant that the sections do not provide an adequate legislative framework for the sale of trophy hunting concessions. His grievance relates to the manner in which they have been applied, i.e. in selling a concession to the fourth respondent by private treaty rather than by auction to the highest bidder. It is the second respondent’s decision to do so which, the applicant says, derogated from his right to equality, fair administrative action and the freedom to practise his profession protected under Articles 10, 18 and 21(1)(j) of the Constitution; which infringed his legitimate expectation to be heard before the Minister deviated from the longstanding practice and policy regarding the sale of hunting concessions; which conflicted the Tender Board Act, 1996 and the regulations thereunder and which was made without any factual or legal basis. In what follows, I shall deal with each of these contentions in the order in which they have been mentioned.</p> <p>  </p> <ol start="2"><li> <p> Mr Van Der Byl argued on behalf of the applicant that the second respondent was obliged to apply the provisions of the Ordinance fairly and reasonably in granting concessions and, as the Government had done for more than 10 years, to treat all interested and qualified persons on an equal basis without favour or prejudice. He contends that even before constitutional entrenchment of the right to equality the Courts have held that a law should not be construed to achieve apparently purposeless, illogical and unfair discrimination or differentiation between persons who might fall within its ambit.<sup><a class="sdfootnoteanc" href="#sdfootnote15sym" name="sdfootnote15anc" id="sdfootnote15anc"><sup>15</sup></a></sup> Referring to the “rational connection”, “reasonable classification” and “intelligible differentia” criteria developed in local and international law around the principle of constitutionally entrenched equality,<sup><a class="sdfootnoteanc" href="#sdfootnote16sym" name="sdfootnote16anc" id="sdfootnote16anc"><sup>16</sup></a></sup> he submits that the second respondent’s decision to sell a concession to the fourth respondent by private treaty differentiated between the latter and other professional hunters without there being a rational connection to a legitimate governmental purpose for the differentiation. The applicant complained that he found himself in exactly the same position in this application as the one in which the fourth respondent had been in the Morris-application, yet, whereas the fourth respondent was rewarded with a concession, the applicant’s application was “vehemently opposed”. Mr Smuts, who appeared with Ms Engelbrecht for the respondents on the return day, took issue with the contention that the applicant and the fourth respondent were similarly situated. Not all forms of differentiation violate the constitutional demand for equality, he contended,<sup><a class="sdfootnoteanc" href="#sdfootnote17sym" name="sdfootnote17anc" id="sdfootnote17anc"><sup>17</sup></a></sup> and are permissible if persons are not similarly situated<sup><a class="sdfootnoteanc" href="#sdfootnote18sym" name="sdfootnote18anc" id="sdfootnote18anc"><sup>18</sup></a></sup>.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> It is common cause that the administrative decisions regarding the sale of trophy hunting concessions differentiated between the applicant and the fourth respondent. But, to assess the legality of the differentiation only with reference the Minister’s decision to sell a concession to the fourth respondent by private treaty rather than by public auction, would ignore the history behind the decision. It is in the events which preceded the Minister’s decision that the <em>ratio</em> of the differentiation is to be found. The applicant’s contentions lose sight of the fact that the fourth respondent was the only professional hunter interested in acquiring a concession who had been denied an opportunity to competed for one; that the Court held in the Morris-application that his exclusion had been <em>prima facie</em> unlawful; that the Minister was constrained to concede that the fourth respondent had an unassailable case of unfair discrimination and treatment and, finally, that the Minister’s decision to settle the case, which is the subject matter of this application, was clearly intended to remedy the disadvantage suffered by the fourth respondent as a consequence of his unlawful exclusion from the auction. If the differentiation complained of was simply a mechanism to rebalance the scale of equality by adding the same measure as that by which the fourth respondent had been unlawfully disadvantaged earlier, it could hardly be contended that the differentiation amounted to constitutionally impermissible discrimination – in principle, no more than affirmative action is permitted within the ambit of the fundamental right to equality as a means to redress the disadvantages suffered by persons as a result of past discriminatory policies and practices. The fourth respondent was disadvantaged <em>vis-à-vis</em> the other professional hunters by his unlawful exclusion from the auction: the others could compete on an equal basis (although not all equally successful) for concessions, only he was unlawfully denied the opportunity to do so. It is within this context that the legality of the differentiation complained about falls to be decided.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The nature of the differentiation cannot be brought within the ambit of one or more of the enumerated classifications mentioned in Article 10(2) of the Constitution “which, historically, were singled out for discriminatory practices exclusively based on stereotypical application of presumed group or personal characteristics”.<sup><a class="sdfootnoteanc" href="#sdfootnote19sym" name="sdfootnote19anc" id="sdfootnote19anc"><sup>19</sup></a></sup> This is therefore not a case of a differentiating classification which is suspect by its nature and the person or body which has made it bears the burden to prove that it does not amount to constitutionally impermissible “discrimination” in the pejorative sense or that it is otherwise authorised under Article 23 of the Constitution. The applicant’s case to be limited to the contention that the differentiation violated his right to “equal treatment before the law” entrenched in Article 10(1) of the Constitution.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> In dealing with Article 10(1), the Supreme Court<sup><a class="sdfootnoteanc" href="#sdfootnote20sym" name="sdfootnote20anc" id="sdfootnote20anc"><sup>20</sup></a></sup> approved the following <em>ratio</em> in <em>Prinsloo v Van der Linde and Another</em>:<sup><a class="sdfootnoteanc" href="#sdfootnote21sym" name="sdfootnote21anc" id="sdfootnote21anc"><sup>21</sup></a></sup></p> </li> </ol><p>  </p> <p> “…in order to govern a modern country efficiently and to harmonise the interests of all its people for the common good, it is essential to regulate the affairs of its inhabitants extensively. It is impossible to do so without classifications which treat people differently and which impact on people differently. It is unnecessary to give examples which abound in everyday life in all democracies based on equality, and freedom. . . . In regard to mere differentiation the constitutional state is expected to act in a rational manner. It should not regulate in an arbitrary manner or manifest ''naked preferences'' that serve no legitimate governmental purpose for that would be inconsistent with the rule of law and the fundamental premises of the constitutional state. . . . Accordingly, before it can be said that mere differentiation infringes s 8 it must be established that there is no rational relationship between the differentiation in question and the governmental purpose which is proffered to validate it.”</p> <p>  </p> <p> This approach, it seems, conforms to one of the authorities relied on by the applicant. Warwick McKean, <em>op.cit.</em><sup><em><a class="sdfootnoteanc" href="#sdfootnote22sym" name="sdfootnote22anc" id="sdfootnote22anc"><sup>22</sup></a></em></sup>, in discussing equality under the Indian and American constitutions summarised the position as follows:</p> <p>  </p> <p> “”The equal protection clause has never been thought to require the same treatment of all persons despite different circumstances. Rather, it prevents states from arbitrarily treating people differently under their laws. Whether any such differing treatment is deemed to be arbitrary depends on whether or not it reflects ‘an appropriate differentiating classification among those affected’. Thus the Courts have evolved a doctrine of ‘reasonable classification’.</p> <p>  </p> <p> To be reasonable, a classification must always rest upon some real and substantial distinction bearing a reasonable and just relation to things in respect of which the classification is made, which includes all who are similarly situated and none who are not.”</p> <p>  </p> <ol start="2"><li> <p> Differentiation, without more, does not detract from the applicant’s right to equal treatment under the law. For differentiation to be constitutionally impermissible under Article 10(1), it must amount to discrimination in the pejorative sense by being “unfair” or “unreasonable” in the circumstances. It is not measured by a mathematical formula to establish whether there had been identity of treatment, but is assessed with reference to a legal model based on the values of reasonableness and fairness: It requires that the differentiation must both be intelligible and rationally connected to the legitimate governmental objective advanced for its validation<sup><a class="sdfootnoteanc" href="#sdfootnote23sym" name="sdfootnote23anc" id="sdfootnote23anc"><sup>23</sup></a></sup>. The burden to prove that the differentiation is not intelligible or rationally connected to a legitimate governmental objective is borne by the person who challenges the constitutionality thereof. In <em>Mwellie v Ministry of Works, Transport and Communication and Another</em><sup><em><a class="sdfootnoteanc" href="#sdfootnote24sym" name="sdfootnote24anc" id="sdfootnote24anc"><sup>24</sup></a></em></sup> this Court referred with approval to an extract from Willis: <em>Constitutional Law,</em> (1) 1<sup>st</sup> ed., at 579 in which the author expressed the view that the “(o)ne who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis.” The Court held that the <em>onus </em>was on the plaintiff who challenged the constitutionality of a statutory limitation for the institution of claims and continued:</p> </li> </ol><p>  </p> <p> “If therefore, in the present case, the onus is on the plaintiff to prove the unconstitutionality of Section 30(1) on the basis that it infringes the plaintiffs right of equality before the law, it will, on the findings made by me, have to show that the classification provided for in the section is not reasonable, or is not rationally connected to a legitimate object or to show that the time of prescription laid down in the section was not reasonable. Until one or all of these factors are proved it cannot be said that there was an infringement of the plaintiff’s right of equality before the law. This, in my opinion is because I have found that the constitutional right of equality before the law is not absolute but that its meaning and content permit the Government to make statutes in which reasonable classifications which are rationally connected to a legitimate object, are permissible.”</p> <p>  </p> <p>  </p> <ol start="2"><li> <p> It is in this context that I must deal with a realted argument advanced by counsel on behalf of the applicant. The respondents filed short answering affidavits prior to the hearing on the interim relief. In those affidavits they incorporated by reference the more extensive answering affidavits filed by them in opposition to the pending Cilliers-application. That application was essentially for the same declaratory relief and, in effect, raised the same factual and legal issues as this one. Although the respondents had reserved their rights to amplify their answering affidavits in this application should the Court grant a rule <em>nisi </em>and interim relief, they did not avail themselves of that right. Their failure to do so, counsel for the respondents submitted, means that the case which the applicant had established on a <em>prima facie</em> basis for the interim relief became “conclusive” against the respondents on the return day.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> This argument loses sight, not only of the different criteria by which the evidence is measured on the return day for final interdictory relief<sup><a class="sdfootnoteanc" href="#sdfootnote25sym" name="sdfootnote25anc" id="sdfootnote25anc"><sup>25</sup></a></sup>, but, more importantly, the very different approach the Court takes in evaluating the evidence at the interim and final stages of the proceedings respectively. The approach which the Court will take in assessing the evidence at the interim stage is succinctly summarised with reference to a long line of judgements in point<sup><a class="sdfootnoteanc" href="#sdfootnote26sym" name="sdfootnote26anc" id="sdfootnote26anc"><sup>26</sup></a></sup> by Nicolson J in <em>Ladychin Investments (Pty) Ltd v South African National Roads Agency Ltd and Others.</em><sup><em><a class="sdfootnoteanc" href="#sdfootnote27sym" name="sdfootnote27anc" id="sdfootnote27anc"><sup>27</sup></a></em></sup> In summary, the Court’s approach to factual disputes on the affidavits at the interim stage will be as follows<sup><a class="sdfootnoteanc" href="#sdfootnote28sym" name="sdfootnote28anc" id="sdfootnote28anc"><sup>28</sup></a></sup>:</p> </li> </ol><p>  </p> <p> “3. Even if there are material conflicts of fact the Courts will still grant interim relief. The proper approach is to take the facts as set out by the applicant, together with any facts set out by the respondent, which the applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant should on those facts obtain final relief at a trial.</p> <p> 4. The facts set up in contradiction by the respondent should then be considered. If serious doubt is thrown on the case of the applicant he should not succeed in obtaining temporary relief, for his right, prima facie established, may only be open to 'some doubt'.</p> <p> 5. If there is mere contradiction, or unconvincing explanation, the matter should be left to trial and the right be protected in the mean time, subject of course to the respective prejudice in the grant or refusal of interim relief.”</p> <p>  </p> <p> The facts - and factual disputes in particular – will be adjudicated differently on the return day, which, in a sense, is the converse of approach adopted at the interim stage.</p> <p>  </p> <p> “It is trite law that any dispute of fact in application proceedings should be adjudicated on the basis of the facts averred in the applicant's founding affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, whether or not the latter has been admitted by the applicant, unless a denial by the respondent is not such as to raise a real, genuine or bona fide dispute of fact or a statement in the respondent's affidavits is so far-fetched or clearly untenable that the Court is justified in rejecting it merely on the papers.”<sup><a class="sdfootnoteanc" href="#sdfootnote29sym" name="sdfootnote29anc" id="sdfootnote29anc"><sup>29</sup></a></sup></p> <p>  </p> <ol start="2"><li> <p> The differing approaches may be best illustrated by reference to one important factual dispute in this application. Although the respondents denied it, the Court had to accept for purposes of deciding on the interim relief the applicant’s allegation that the quota of 4 elephant bulls, 4 buffalo bulls, 2 male lions and 4 hyenas was worth “far more” than the N$408 624 <em>per annum</em> payable under the concession by the fourth respondent and that, had the concession been offered for sale at an auction, the applicant would have offered “well in excess of N$½ million for it. This allegation strongly suggested that the Minister had acted irresponsibly in disposing of natural resources in the pubic domain; that his decision, contrary to his duty under Article 18 of the Constitution, conferred a benefit on the fourth respondent which was so disproportionate that it could only be unfair and unreasonable in the context of Cabinet’s policy of equal treatment and that the applicant and other professional hunters had been treated unequally under Article 10(1). On the return day, however, the Court had to adjudicate the issues on the basis of the respondents’ affidavits in which it was stated that the value of each species of animal sold in terms of the concession had been determined with reference to the average price pertaining to such species obtained at the auction. In the calculation, which appears from an attached memorandum to the Minister, the lower prices obtained for the Waterberg and Mangetti concessions were disregarded for purposes of calculating the average because the one did not include elephant and lion and the other had a history of very low prices. This evidence belied the allegations on which the interim relief had been granted and, in the final adjudication, impacted significantly on the perception of unequal, unfair and unreasonable treatment which the applicant sought to establish in his founding papers.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> In applying this approach to the affidavits in this matter, the first question to be answered is whether the applicant has shown on a balance of probabilities that the differentiation between the fourth respondent and him was not intelligible<sup><a class="sdfootnoteanc" href="#sdfootnote30sym" name="sdfootnote30anc" id="sdfootnote30anc"><sup>30</sup></a></sup>. As Warwick McKean reasoned in the quotation referred to earlier, “the equal protection clause has never been thought to require the same treatment despite different circumstances”. In <em>Mwellie</em><sup><a class="sdfootnoteanc" href="#sdfootnote31sym" name="sdfootnote31anc" id="sdfootnote31anc"><sup>31</sup></a></sup>’s-case, this Court referred to the “similarly situated” criterion in constitutional claims for equality in the following manner:</p> </li> </ol><p>  </p> <p> “On the basis that reasonable classifications do not militate against Article 10(1) of the Constitution it is first of all necessary to determine whether the classification in the present instance accord the plaintiff worse treatment <em>than others in a similar position</em>.”</p> <p> (The emphasis is mine)</p> <p>  </p> <p> Notwithstanding applicant’s contentions to the contrary, it is apparent that he and the fourth respondent were not similarly situated. The applicant had an opportunity to compete for a concession at the auction. The fourth respondent was denied that opportunity. The differentiation which resulted from the Minister’s decision was made to redress the disadvantage he had suffered as a consequence of an official’s unlawful decision to deny him participation. The <em>ratio</em> for the differentiation made by the Minister was therefore clearly intelligible.</p> <p>  </p> <ol start="2"><li> <p> The next enquiry is whether the applicant proved that the differentiation was not rationally connected to a legitimate governmental objective. The objective of the settlement was to redress by a calculated measure the extent to which the fourth respondent had been disadvantaged by his exclusion from participation in the auction for trophy hunting concessions on State land in breach of his fundamental right to equal treatment, to administrative fairness and of the Cabinet’s policy to transparency and equality in the grant of those concessions. The predicament of the Government caused by the official’s decision to exclude the fourth respondent and with which the Minister was faced in the legal proceedings against him was apparent from the advice he had received: The Government was, on a consensus of opinion, in the wrong; its cause in the pending proceedings was lost; continued resistance to confirmation of the rule would only have served to delay the inevitable, escalate costs for the Government and detract from its constitutional commitment and responsibility to uphold fundamental rights. Moreover, given the terms of the interim interdict in the Morris-application, the auctioned concessions could not be exploited pending finalisation of the application; win or lose, the longer the delay, the greater the Government’s exposure to claims for damages by the concession-holders (who could not be blamed for the predicament) and the greater the loss of income to be derived by the State from the concessions. If the Morris-application would ultimately succeed against the Government, the potential of further claims for damages from previously successful bidders would be a likely result: if they had to pay more for the same concession, they would endeavour to recover the difference and, if those concessions would be sold to higher bidders, their claims would be for the loss of profits on the concessions which they previously held.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> In these circumstances, the expeditious settlement of the Morris-application was clearly a legitimate governmental objective. The applicant suggested that, in settlement, the Minister should have had the Mamili concession auctioned instead of granting it to the fourth respondent by private treaty. The suggested course, in my view, would not have remedied the disadvantage which the fourth respondent had suffered: he would then only have the opportunity to compete for one concession whereas the applicant (and the other professional hunters similarly situated) would also be entitled to bid on that one in addition to the many others auctioned earlier. Moreover, the applicant’s suggestion seems to be somewhat self-serving: Having been unsuccessful to win a concession at the auction, he would normally have had to wait a further three years to compete afresh for one. However, when the Minister made a further concession available to address the fourth respondent’s unlawful exclusion from the auction, he saw an opportunity to get a further bite at the proverbial cherry.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Other than to offer financial compensation for the damages suffered by the fourth respondent’s in consequence of the official’s unlawful decision, the Minister was not left with other apparent choices but the one he ultimately opted for. Whether the former would have been preferable to the latter is not the issue which this Court must decide. What it must examine is whether the applicant proved that there was no rational connection between the differentiation complained of and the objective of the settlement. For the reasons I have given, the applicant clearly failed to discharge that burden.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The second ground on which the applicant sought to assail the Minister’s decision is based on his right to fair and reasonable administrative action protected under Article 18 of the Constitution. The applicant alleged that, in selling and granting the Mamili-concession to the fourth respondent without calling for tenders or offering it for sale by way of auction, the Minister acted unfairly. In argument, his counsel submitted that in attempting to remedy the alleged wrong committed to the fourth respondent, the Minister perpetrated yet another: one against the applicant and other professional hunters similarly situated. As “two wrongs cannot make a right”, counsel contended, the Minister should to have done one of three things instead: he should have persisted with his opposition to the Morris-application or conceded the relief prayed for and auctioned all the concessions afresh or, after having obtained Cabinet approval, auctioned the Mamili-concession.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> It is of some significance to note that the applicant’s affidavit does not seek to establish unreasonableness with reference to specific common law grounds of review - such as when a person has acted “<em>mala fides</em> or from ulterior and improper motives, if he had not applied his mind to the matter or exercised his discretion at all, or if he had disregarded the express provisions of a statute”.<sup><a class="sdfootnoteanc" href="#sdfootnote32sym" name="sdfootnote32anc" id="sdfootnote32anc"><sup>32</sup></a></sup> Even if I were to accept, without deciding, that the basis for interference with administrative decisions under Article 18 may be wider<sup><a class="sdfootnoteanc" href="#sdfootnote33sym" name="sdfootnote33anc" id="sdfootnote33anc"><sup>33</sup></a></sup> than under the common law, the Court is not entitled to substitute its decision for that of the functionary simply because it would have chosen another from the bouquet of available lawful options.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Earlier in this judgment, I have discussed the predicament the Minister was faced with in the Morris-application. In the course thereof, I dealt with all three the options mentioned by the applicant’s counsel and demonstrated the potentially unacceptable or unpalatable implications they could have. But the question is not whether the ones suggested by counsel would have been preferable to the one which the Minister had decided on: it is whether the Minister acted fairly and reasonably when he decided to sell the Mamili-concession to the fourth respondent by private treaty. There cannot be any quarrel that the Minister, not the Cabinet, was entrusted by the Legislature to exercise the powers, duties and functions contemplated in sections 28(1)(a), 36(1)(a) and 78(f) of the Ordinance – and that he did so. The Cabinet’s authority under those sections was brought to an end in 1996 by the promulgation of sections 1 and 12 of the Nature Conservation Amendment Act, No.5 of 1996. Cabinet was at liberty to lay down a general policy to guide the Minister in the administration of the Ordinance, but ultimately, the statutory responsibility to make administrative decisions regarding concessions vested in the Minister and in no other. I have found earlier in this judgment that the Minister’s decision was not in conflict with either the Cabinet’s policy or the constitutional principle of equality. The decision was “remedial or restitutionary”<sup><a class="sdfootnoteanc" href="#sdfootnote34sym" name="sdfootnote34anc" id="sdfootnote34anc"><sup>34</sup></a></sup> action taken within the permissible limits of the equality concept to redress the disadvantage previously occasioned in the case of the fourth respondent. In the view I have taken, the Minister’s ultimate decision to sell the concession by private treaty was clearly well-advised, rationally connected to the facts underlying it and squarely within his powers.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> There is a second reason why the applicant contended that the decision infringed on his right to administrative fairness: Given the Cabinet’s policy and the practice which had developed over a period of ten years regarding the sale of concessions, he claimed with reference to <em>Administrator, Transvaal, and Others v Traub and Others</em>,<sup><a class="sdfootnoteanc" href="#sdfootnote35sym" name="sdfootnote35anc" id="sdfootnote35anc"><sup>35</sup></a></sup> that he had a “legitimate expectation” to be heard before the Minister could deviate from the policy and practice. For the reasons I have mentioned earlier, I am not persuaded that the Minister’s decision was not in line with the Cabinet’s policy of equality: the decision was to sell the concession to the fourth respondent was intended to remedy an earlier deviation from that policy. The conditions which attached to the concession under the sale were exactly the same as those subject to which the other concessions had been auctioned and the price thereof was carefully calculated with reference to the average price achieved for other comparable concessions.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Whether the applicant had expectations that he would be heard on the matter is not the test: it is whether, viewed objectively, the demand for procedural fairness required such a hearing before the decision was taken. The concept of “legitimate expectation” is explained in <em>President of the Republic of South Africa and Others v South African Rugby Football Union and Others</em><sup><em><a class="sdfootnoteanc" href="#sdfootnote36sym" name="sdfootnote36anc" id="sdfootnote36anc"><sup>36</sup></a></em></sup>:</p> </li> </ol><p>  </p> <p> “The question whether an expectation is legitimate and will give rise to the right to a hearing in any particular case depends on whether, in the context of that case, procedural fairness requires a decision-making authority to afford a hearing to a particular individual before taking the decision. To ask the question whether there is a legitimate expectation to be heard in any particular case is, in effect, to ask whether the duty to act fairly requires a hearing in that case. The question whether a 'legitimate expectation of a hearing' exists is therefore more than a factual question. It is not whether an expectation exists in the mind of a litigant but whether, viewed objectively, such expectation is, in a legal sense, legitimate; that is, whether the duty to act fairly would require a hearing in those circumstances. It is for this reason that the English courts have preferred the concept of 'legitimate expectation' to that of 'reasonable expectation'. In <em>Council of Civil Service Unions and Others v Minister for the Civil Service</em>, 164 Lord Diplock explained that 'legitimate' should be used rather than 'reasonable':</p> <p> '. . . in order thereby to indicate that it has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantage would continue to be enjoyed, although it might well be entertained by a ''reasonable'' man, would not necessarily have such consequences'.”</p> <p> (Footnotes omitted)</p> <p>  </p> <ol start="2"><li> <p> Mr Smuts submits on behalf of the respondents that the applicant had the <em>onus</em> to establish this ground of review<sup><a class="sdfootnoteanc" href="#sdfootnote37sym" name="sdfootnote37anc" id="sdfootnote37anc"><sup>37</sup></a></sup> and that, in the circumstances of this case objectively assessed, a legitimate expectation to be heard not did not arise at all. I agree. The practice of selling concessions by auction flowed from the policy of equality and transparency. That policy is, in essence, both the reason for and the basis on which the concession was sold to the fourth respondent. Policies are generally intended to guide public authorities and influence their decisions, not to dictate them:</p> </li> </ol><p>  </p> <p> “Where a discretion has been conferred upon a public body by a statutory provision, such a body may lay down a general principle for its general guidance, but it may not treat this principle as a hard and fast rule to be applied invariably in every case. At most it can be only a guiding principle, in no way decisive. Every case that is presented to the public body for its decision must be considered on its merits. In considering the matter the public body may have regard to a general principle, but only as a guide, not as a decisive factor.”<sup><a class="sdfootnoteanc" href="#sdfootnote38sym" name="sdfootnote38anc" id="sdfootnote38anc"><sup>38</sup></a></sup></p> <p>  </p> <p> The Minister’s decision, taken within the four corners of the authority conferred on him under the Ordinance, sought to give effect to the underlying policy of equality and to address the Government’s exposure in the Morris-application. In the circumstances, his constitutional duty to act fairly and reasonably did not require of him to afford the applicant and all other professional hunters similarly situated an opportunity to be heard on the specifics of the settlement or the principle of a sale by private treaty - in any event not for as long as it was within the flexible framework of the general policy of equality. For these reasons, the applicant’s reliance on this ground must also fail.</p> <p>  </p> <ol start="2"><li> <p> The final constitutional ground on which the legality of the Minister’s decision was attacked is based on the provisions of Article 21(1)(j) which guarantee the right of every person to “practise any profession, or carry on any occupation, trade or business.” No facts or averments are advanced in the founding affidavit from which it could have been gathered in which respect the Minister’s decision derogated from or infringed the applicant’s rights under the Article. From the heads of argument filed on his behalf, the reason for his complaint became more apparent: a lucrative business developed around the system of trophy hunting concessions and, by awarding concessions in an arbitrary fashion, the Applicant’s right to practice his profession as a professional hunter “has obviously seriously been affected”. Both the principle and the premise for this submission are untenable. Given the historical and constitutional context and purpose of the freedom to economic activity espoused in by this Court in <em>Hendricks and Others v Attorney General, Namibia, and Others,</em><sup><em><a class="sdfootnoteanc" href="#sdfootnote39sym" name="sdfootnote39anc" id="sdfootnote39anc"><sup>39</sup></a></em></sup> it seeks to protect the values underlying it,<sup><a class="sdfootnoteanc" href="#sdfootnote40sym" name="sdfootnote40anc" id="sdfootnote40anc"><sup>40</sup></a></sup> not the profitability of those activities. Moreover, the submission is premised on the allegation that the Mamili-concession was arbitrarily granted, which I have found not to be the case. It is therefore not necessary to deal with this ground any further.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Initially, the applicant also challenged the Minister’s decision on the basis that it was “contrary to Tender Board Regulations”. However, given the provisions of s 7(1) of the Tender Board of Namibia Act, 1996 which make the Tender Board’s responsibility as regards the procurement of goods and services subject to the provisions of “any other law” and the respondents’ contention that s. 78(f) of the Ordinance which authorises the Minister “to take the measures which (he) may deem necessary or desirable for the …sale of wild animals …” is one such law, counsel for the applicant conceded that the Tender Board Regulations do not apply and abandoned this ground during argument.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The final ground advanced is that no factual or legal basis existed on which the Morris-application could have been settled because the fourth or fifth respondents had “indeed failed to pay annual monies for the full concession period”. Although not abandoned, this ground was also not pursued in argument. It does not appear on the papers which amount, if any, the fourth or fifth respondents had failed to pay and, if so, whether they were justified in withholding such payment. The advice which the Minister received constituted the factual and legal basis for his decision – that much is clear from the submissions and recommendations made to him and from the affidavits in this application. Whether the advice which the Minister <em>bona fide </em>acted on was correct or not, is not for this Court to determine – and, because the applicant had not been privy to the events and discussions on which the advice had been based, his rather blunt allegation does not give rise to a <em>bona fide </em>dispute.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> There was also an ancillary dispute regarding incomplete discovery which was not taken any further in argument. The applicant elected to argue the merits of the application on the return day rather than to move the application for further discovery and a postponement of the main application, if successful. Having elected to proceed in that manner, the discovery application was seemingly abandoned.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> There was no reason why costs should not follow the result but, because the respondents were initially represented by one instructed counsel and only on the return day by two such counsel, the order of costs had to be formulated accordingly.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> It is for these reasons that the Court made the following <em>ex tempore </em>order at the time:</p> </li> </ol><p>  </p> <p> “1. The rule <em>nisi</em> is discharged.</p> <p>  </p> <p> 2. The application for interdictory relief is refused.</p> <p>  </p> <p> 3. The Applicant is to pay the Respondents’ costs, such costs to include the costs of two instructed counsel for today.”</p> <div> <p> <a class="sdfootnotesym" href="#sdfootnote1anc" name="sdfootnote1sym" id="sdfootnote1sym">1</a> See: Baxter: <em>Administrative Law</em>, p. 648</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote2anc" name="sdfootnote2sym" id="sdfootnote2sym">2</a> Compare for example: <em>Roodepoort-Maraisburg Town Council v Eastern Properties (Prop) Ltd</em>, 1933 AD 87 at 103; <em>Ex parte Mouton and Another</em>, 1955 (4) SA 460 (A) at 463H.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote3anc" name="sdfootnote3sym" id="sdfootnote3sym">3</a> See: <em>Financial Services Board and Another v De Wet NO and Others</em>, 2002 (3) SA 525 (C) at 579I-580A.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote4anc" name="sdfootnote4sym" id="sdfootnote4sym">4</a> <em>Kolbatschenko v King NO and Another</em>, 2001 (4) SA 336 (C) at 346H.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote5anc" name="sdfootnote5sym" id="sdfootnote5sym">5</a> Where he said: “'In die algemeen beteken die vereiste van locus standi dat iemand wat aanspraak maak op regshulp 'n voldoende belang moet hê by die onderwerp van die geding om die hof te laat oordeel dat sy eis in behandeling geneem behoort te word. Dit is nie 'n tegniese begrip met vas omlynde grense nie. Die gebruiklikste manier waarop die vereiste beskryf word, is om te sê dat 'n eiser of applikant 'n direkte belang by die aangevraagde regshulp moet hê (dit moet nie te ver verwyderd wees nie); andersins word daar ook gesê, na gelang van die samehang van die feite, dat daar 'n werklike belang moet wees (nie abstrak of akademies nie), of dat dit 'n teenswoordige belang moet wees (nie hipoteties nie) …”</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote6anc" name="sdfootnote6sym" id="sdfootnote6sym">6</a> C.f. <em>Geldenhuys and Neethling v Beuthin,</em> 1918 AD 426 at 441; <em>Ex parte Mouton and Another</em>, <em>supra,</em> at 464A-B.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote7anc" name="sdfootnote7sym" id="sdfootnote7sym">7</a> <em>Dalrymple and Others v Colonial Treasurer,</em> 1910 TS 372 at 390.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote8anc" name="sdfootnote8sym" id="sdfootnote8sym">8</a> <em>Wood and Others v Ondangwa Tribal Authority and Another,</em> 1975 (2) SA 294 (A).</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote9anc" name="sdfootnote9sym" id="sdfootnote9sym">9</a> Discussed in Wade and Forsyth, <em>Administrative Law</em> (7<sup>th</sup> edition) at 696 – 718.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote10anc" name="sdfootnote10sym" id="sdfootnote10sym">10</a> Compare, for example: <em>Namibia Grape Growers and Exporters Association and Others v The Ministry of Mines and Energy and Others</em>, 2004 NR 194 (SC) at 209G; <em>Government of the Republic of Namibia and Another v Cultura 2000 and Another,</em> 1993 NR 328 (SC) at 340B - D (1994 (1) SA 407 (NmS) at 418F – G; <em>Minister of Defence, Namibia v Mwandinghi,</em> 1993 NR 63 (SC) at 68 - 71; <em>S v Acheson,</em> 1991 NR 1 (HC) at 10A – C and <em>S v Zemburuka (2)</em>, 2003 NR 200 (HC) at 208A-E.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote11anc" name="sdfootnote11sym" id="sdfootnote11sym">11</a> As this Court held in <em>Kerry McNamara Architects Inc. and Others v The Minister of Works, Transport and Communication and Others</em> (delivered on 6 March 1997 in case no. A 297/96</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote12anc" name="sdfootnote12sym" id="sdfootnote12sym">12</a> 1995 NR 175 (SC) at 184B.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote13anc" name="sdfootnote13sym" id="sdfootnote13sym">13</a> Wiechers, <em>Administrative Law</em>, p 278<em>.</em></p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote14anc" name="sdfootnote14sym" id="sdfootnote14sym">14</a> As Botha, J.A remarked in <em>Jacobs en 'n Ander v Waks en Andere</em>, <em>supra</em> at 536A “… om die vraag na <em>locus standi</em> uit te maak moet daar, as 'n kwessie van logika, veronderstel word dat die besluit wel ongemagtig en nietig is”. (…to decide the question of <em>locus standi</em>, it must be assumed, as a matter of logic, that the decision has indeed been impermissible and void – free translation)</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote15anc" name="sdfootnote15sym" id="sdfootnote15sym">15</a> Referring to <em>Lister v Incorporated Law Society, Natal</em>, 1969(1) 431 (N) at 434 and <em>Sekretaris van Binnelandse Inkomste v Lourens Erasmus (Edms) Bpk</em>, 1966(4) SA 434 (A) at 443.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote16anc" name="sdfootnote16sym" id="sdfootnote16sym">16</a> Discussed in <em>Harksen v Lane NO and Others</em>, 1998(1) SA 300 (CC), Warwick McKean, <em>Equality and Discrimination under International Law, </em>p 237 and Sieghart, <em>The International Law of Human Rights</em>, p 262.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote17anc" name="sdfootnote17sym" id="sdfootnote17sym">17</a> With reference to <em>Prinsloo v Van der Linde and Another,</em>1997 (3) SA 1012 (CC) at paragraphs [17], [23] – [25]; <em>Harksen v Lane NO and Others</em>, <em>supra, </em>par [45] and [46] and <em>Jooste v Score Supermarkets Trading (Pty) Ltd,</em> 1999 (2) SA 1 (CC).</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote18anc" name="sdfootnote18sym" id="sdfootnote18sym">18</a> Citing <em>Mwellie v Ministry of Works, Transport and Communication and Another</em>, 1995 (9) BCLR 1118 (NmH) in support.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote19anc" name="sdfootnote19sym" id="sdfootnote19sym">19</a> Per Strydom CJ in Muller v President of the Republic of Namibia 1999 NR 190 (SC) at 199H</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote20anc" name="sdfootnote20sym" id="sdfootnote20sym">20</a> <em>Ibid.</em>, at 199C-F</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote21anc" name="sdfootnote21sym" id="sdfootnote21sym">21</a> 1997 (3) SA 1012 (CC) at paras [24] - [26].</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote22anc" name="sdfootnote22sym" id="sdfootnote22sym">22</a> At 237</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote23anc" name="sdfootnote23sym" id="sdfootnote23sym">23</a> Compare: Sieghardt, <em>op. cit., </em>p262; <em>Müller v President of the Republic of Namibia</em>, <em>supra</em>, at 200A-B; <em>Harksen v Lane NO and Others</em> 1998 (1) SA 300 (CC) paragraphs [45] and [54]; <em>Van der Merwe v Road Accident Fund (Women's Legal Centre Trust as Amicus Curiae)</em>, 2006 (4) SA 230 (CC) at par [49].</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote24anc" name="sdfootnote24sym" id="sdfootnote24sym">24</a> 1995 (9) BCLR 1118 (Nm) at 1138E-H</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote25anc" name="sdfootnote25sym" id="sdfootnote25sym">25</a> Succinctly stated as follows in <em>Absa Bank Ltd v Dlamini,</em> 2008 (2) SA 262 (T) at 267C-E par [10]: “As far as a final interdict is concerned, the requirements are: a clear right; an injury actually committed or reasonably apprehended; and an absence of similar or adequate protection by any other ordinary remedy. As far as an interim interdict is concerned, the requirements are: a prima facie right; a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is finally granted; that the balance of convenience favours the applicant for the granting of the interim interdict; and that the applicant has no other satisfactory and adequate remedy.” See also: <em>Bahlsen v Nederloff and Another</em>, 2006 (2) NR 416 (HC) at 424C-F.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote26anc" name="sdfootnote26sym" id="sdfootnote26sym">26</a> <em>Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton, and Another</em>, 1973 (3) SA 685 (A) at 691C - G, <em>Webster v Mitchell</em>, 1948 (1) SA 1186 (W) at 1189 - 90, <em>Gool v Minister of Justice and Another</em>, 1955 (2) SA 682 (C) at 688E - F, <em>Hix Networking Technologies v System Publishers (Pty) Ltd and Another</em>, 1997 (1) SA 391 (A) at 398I - 399A and <em>Hydro Holdings (Edms) Bpk v Minister of Public Works and Another</em>, 1977 (2) SA 778 (T). See also: <em>Setlogelo v Setlogelo</em>, 1914 AD 221</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote27anc" name="sdfootnote27sym" id="sdfootnote27sym">27</a> 2001 (3) SA 344 (N)</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote28anc" name="sdfootnote28sym" id="sdfootnote28sym">28</a> At 353H-354A</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote29anc" name="sdfootnote29sym" id="sdfootnote29sym">29</a> <em>Kauesa v Minister of Home Affairs and Others,</em> 1994 NR 102 at 108G – J. This approach has been applied in many other judgments of this Court and the Supreme Court, e.g. <em>Grobbelaar and Another v Council of The Municipality of Walvis Bay,</em> 2007 (1) NR 259 (HC) at 263A-C and <em>Oppermann v President of the Professional Hunting Association of Namibia,</em> 2000 NR 238 (SC) at 251H-252B. See further: <em>Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd,</em> 1984 (3) SA 623 (A) at 634E-635C; <em>Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd,</em> 1957 (4) SA 234 (C) at 235E-G; <em>Associated South African Bakeries (Pty) Ltd v Oryx &amp; Vereinigte BÌckereien (Pty) Ltd en Andere,</em> 1982 (3) SA 893 (A) at 923G-924D.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote30anc" name="sdfootnote30sym" id="sdfootnote30sym">30</a> In Mwellie’s case, <em>supra,</em> Strydom JP quoted the following passage from Willis with approval: “One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis.”</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote31anc" name="sdfootnote31sym" id="sdfootnote31sym">31</a> At 1138B-C</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote32anc" name="sdfootnote32sym" id="sdfootnote32sym">32</a> Mentioned by Innes CJ in <em>Shidiack v Union Government (Minister of the Interior)</em> 1912 AD 642 at 651.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote33anc" name="sdfootnote33sym" id="sdfootnote33sym">33</a> Compare the decisions in <em>Derby-Lewis and Another v Chairman of the Committee on Amnesty of the Truth and Reconciliation Commission and Others,</em> 2001 (3) SA 1033 (C) at 1065E – F; <em>Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others,</em> 2000 (2) SA 674 (CC) at 708 para [85]; <em>Nieuwoudt v Chairman, Amnesty Subcommittee, Truth and Reconciliation Commission; Du Toit v Chairman, Amnesty Subcommittee, Truth and Reconciliation Commission; Ras v Chairman, Amnesty Subcommittee, Truth and Reconciliation Commission,</em> 2002 (3) SA 143 (C) at 155F – G on section 33 of the South African Constitution.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote34anc" name="sdfootnote34sym" id="sdfootnote34sym">34</a> To use the words which Moseneke, J thought to be “juridically more consonant” with “regstellende aksie” in equality jurisprudence than “affirmative action”. See: <em>Minister of Finance v Van Heerden,</em> 2004 (6) SA 121 (CC) at 136A par [29].</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote35anc" name="sdfootnote35sym" id="sdfootnote35sym">35</a> 1989 (4) SA 731 (A).</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote36anc" name="sdfootnote36sym" id="sdfootnote36sym">36</a> 2000 (1) SA 1 (CC) at 96C-G par [216]</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote37anc" name="sdfootnote37sym" id="sdfootnote37sym">37</a> With reference to <em>Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another,</em> 1988 (3) SA 132 (A) at 152A and <em>Davies v Chairman, Committee of the Johannesburg Stock Exchange</em>, 1991 (4) SA 43(W) at 47G-H.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote38anc" name="sdfootnote38sym" id="sdfootnote38sym">38</a> Per Human J in <em>Computer Investors Group Inc and Another v Minister of Finance</em>, 1979 (1) SA 879 (T) at 898C-F.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote39anc" name="sdfootnote39sym" id="sdfootnote39sym">39</a> 2002 NR 353 (HC) at 357H – 359A</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote40anc" name="sdfootnote40sym" id="sdfootnote40sym">40</a> See also the discussion of similar protection under the South African Constitution in <em>Affordable Medicines Trust and Others v Minister of Health and Others,</em> 2006 (3) SA 247 (CC) at para [59] and <em>Minister of Home Affairs and Others v Watchenuka and Another</em> 2004 (4) SA 326 (SCA) at paras [26] – [27].</p> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-3db4dc9e9ddf784eba05b6a1086dc2643ccffbf0b0f2405d336f85362298038b"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p> <u>ARTHUR FREDERICK UFFINDELL T/A ALOE HUNTING SAFARIS v GOVERNMENT OF NAMIBIA AND 4 OTHERS</u></p> <p> <u>CASE NO. (P) A. 141/2000 </u></p> <p>  </p> <p> 2009/04/20</p> <p>  </p> <p> Maritz, J.</p> <p>  </p> <p> <u>PRACTICE</u></p> <p> <u>CONSTITUTIONAL LAW</u></p> <p> <u>EVIDENCE</u></p> <p>  </p> <p> Practice - <em>Locus standi</em> – Common Law – aspect of procedural law – flexibility in allowing – “direct and substantial interest” – scope and ambit not capable of exact delineation –to be assessed with reference to circumstances of each case</p> <p>  </p> <p> Practise - <em>Locus standi</em> – Article 25(2) of Constitution – meaning of “aggrieved persons” – purposive approach to ensure enjoyment of the full measure of protection of fundamental rights entitled to – public interest character of rights protected – entitlement to relief to be assumed in assessing standing - approach to standing wider than under common law</p> <p>  </p> <p> Practice – different requirements for interim and final interdicts – differences in assessing facts at interim and final stage of proceedings discussed</p> <p>  </p> <p> Constitutional law – Article 10(2) – suspect classification – burden of proof to justify</p> <p>  </p> <p>  </p> <p> Constitutional law – Article 10(1) – right to equal treatment – mere differentiation permissible for persons not similarly situated – differentiation amounting to discrimination in pejorative sense – intelligible differentia - rational connection test</p> <p>  </p> <p> Constitutional law – principle of equality – differentiation made to redress disadvantage occasioned by earlier administrative decision – differentiation intended to redress disadvantage permissible</p> <p>  </p> <p> Constitutional law – Article 18 – right to administrative fairness and reasonableness – legitimate expectation to be heard – principle and objective application discussed</p> <p>  </p> <p> Evidence – burden of proof - Article 10(1) of Constitution – right to equal treatment - differentiation amounting to discrimination in pejorative sense – differentia not intelligible – no rational connection between measure and legitimate governmental objective</p> <p>  </p> <p>  </p> <p>  </p> <p> CASE NO.: (P) A. 141/2000</p> <p>  </p> <p> IN THE HIGH COURT OF NAMIBIA</p> <p> In the matter between:</p> <p> <strong>ARTHUR FREDERICK UFFINDELL t/a</strong></p> <p> <strong>ALOE HUNTING SAFARIS Applicant</strong></p> <p>  </p> <p> and</p> <p>  </p> <p> <strong>GOVERNMENT OF NAMIBIA First Respondent</strong></p> <p> <strong>MINISTER OF ENVIRONMENT AND TOURISM Second Respondent</strong></p> <p> <strong>MINISTER OF FINANCE Third Respondent</strong></p> <p> <strong>KENNETH MORRIS Fourth Respondent</strong></p> <p> <strong>BYSEEWAH HUNTING SAFARIS (PTY) LTD Fifth Respondent</strong></p> <p>  </p> <p>  </p> <p> <strong>CORAM: </strong><strong> MARITZ, J.</strong></p> <p> Heard on: 2001/03/05</p> <p> Order on: 2001/03/05</p> <p> Reasons on: 2009/04/</p> <p>  </p> <p>  </p> <p> <u><strong>REASONS</strong></u></p> <p> <u><strong>MARITZ, J.</strong></u>: [1] What follows are the reasons for the order in which the Court discharged a rule<em> nisi</em> earlier granted in favour of the applicant; dismissed the balance of his application for interdictory relief and ordered him to pay the respondents’ costs.</p> <p>  </p> <ol start="2"><li> <p> The cause of discontent between the litigants lies the sale of a trophy hunting concession in the Mamili National Park under the provisions of the Nature Conservation Ordinance, 1975 (the “Ordinance”). Limited and strictly regulated concessions of that nature had been approved in principle by Cabinet as a means to utilise wildlife resources on a sustainable manner in game parks and reserves on State land and to remove crop-raiding and problem animals in communal areas adjacent thereto. Moreover, an amendment to the Ordinance in 1996 allowed indigenous communities to establish conservancies on communal land and to obtain permits to hunt limited numbers of certain species of game thereon. The sale of those quotas to trophy hunters proved to be the most beneficial means of utilising of the rights granted under the permits: comparatively, it generated the highest income; it constituted an effective, economical and viable means to remove animals either too old to reproduce or approaching the end of their natural lives from game populations; the meat of hunted trophy game remained the property of the conservancy and could be distributed amongst its members as food and the income generated could be deposited in the Game Products Trust Fund for distribution to the relevant communal conservancies and Wildlife Counsels, to finance appropriate communal area developments and to compensate neighbouring communal farmers who had suffered damages caused by problem animals from adjacent game parks and reserves.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The sale of trophy hunting concessions in those areas by tender (during 1992-1994) and public auction (since 1995) had been an important stimulus and source of income for the rapidly developing and highly profitable trophy hunting industry. The applicant, a registered professional hunter trading under the name and style of Aloe Hunting Safaris, held successive concessions during the period 1994 - 1999. The sale of further concessions for the first 3 years of the new millennia were approved by Cabinet on 9 December 1999 and auctioned off on 9 March 2000 at Windhoek. The applicant was one of the bidders at the auction but his bid for a concession in the Mahango Game Park was unsuccessful. In the result, he was left without a trophy hunting concession on State land for the next three years and, as may be imagined, without the financial benefit he had hoped to gain from its exploitation.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Although he lost to a higher bidder, the applicant at least had the satisfaction of knowing that he had been accorded an equal opportunity to compete with others for hunting concessions at the auction. The fourth and fifth respondents were denied that opportunity. They had received invitations from the Ministry of Environment and Tourism to attend the auction and the fourth respondent, also a professional hunter and former concession holder, was keen to win a concession at the auction. He travelled on short notice from Outjo to partake in the auction at Windhoek - only to be informed by a certain Mr Beytel during the registration process immediately preceding the auction that he would not be allowed to either register or to bid at the auction. Beytel, a Deputy Director in the employ of the Ministry, told him that the decision was not his but had been taken by the Director of Resource Management in the Ministry. When he and Beytel enquired from the Director about her reasons for the decision, she told them that her decision was final and that she was not willing to discuss the matter any further. During a subsequent conversation, Beytel speculated that the decision might have been based on issues which had arisen in the course of a previous concession held by him. The fourth respondent’s assurances that those issues had been resolved with the Government Attorney long before the auction and his objections against exclusion, were to no avail: He was not allowed to bid at the auction - neither in his personal capacity nor on behalf of the fifth respondent.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Aggrieved by – what they believed to be - their unjustified and unlawful exclusion, they launched an urgent application in this Court to interdict implementation of the concessions sold at the auction pending the outcome of an application to review the decision which resulted in their exclusion; for a declarator that the impugned decision was unconstitutional; for an order that the agreements entered into pursuant to the sale by auction should be set aside and that the Ministry should be directed to auction the concessions afresh. The application cited the Government, the Minister of Environment and Tourism, the Director of Resource Management, the Permanent Secretary of the Ministry and the seven successful bidders as respondents. The founding papers alleged that the impugned decision was taken in violation of their fundamental right to equality; to fair administrative justice and to freely practice a profession or occupation and carry on a business. They succeeded in obtaining a rule <em>nisi</em> and interim interdict along the lines of the relief prayed for. Pending the return day of the rule, the Minister and the other cited officials in the Ministry consulted the Government Attorney and met with the legal representatives of the successful bidders. The consensus at that meeting was that the decision to exclude the fourth respondent from the auction was indeed unconstitutional and, for that reason, unlawful. In settlement of – what he accepted to be - a lost cause and to avoid further prejudice to the successful bidders (who were not to blame for the predicament occasioned by the decision), the Minister, acting upon a written recommendation of the Director: Resource Management and the Permanent Secretary in the Ministry, decided to make a further trophy hunting concession available in the Mamili National Park and to sell it by private treaty to the fourth respondent subject to the same conditions applicable to the other hunting concessions sold at the auction. In the negotiations that followed, the matter was settled on that basis subject to Treasury approval under the State Finance Act, 1991, which was obtained subsequently. For the sake of brevity, I shall hereunder refer to this application as the “Morris-application”</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Unfortunately, the settlement of one dispute - like cutting off one of the Hydra’s heads – spawned, in this instance, two more: the current application being one and an application brought by one Allan Cilliers being the other. The applicant feels himself aggrieved by the decision of the Minister to grant and sell a trophy hunting concession in the Mamili National Park to the fourth respondent by private treaty for, what he claimed to be, an “extremely low price”. The concession, he said, should have been offered for sale on auction in accordance with a “fixed policy and practise for many years”. The sale by private treaty in settlement of the issues in the Morris-application violated his right to equality protected under Article 10 of the Constitution; detracted from his right to fair administrative action under Article 18 thereof; impinged and prejudiced his right to practise his profession as a professional hunter protected under Article 21(2)(j); contravened the Tender Board Regulations; derogated from the legitimate expectation he had to be heard before deviating from the policy which had been followed for many years regarding the sale of concessions and, finally, was unjustified because there was no factual or legal basis for the settlement of the dispute in the first place.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The applicant applied, amongst others, on an urgent basis for – and obtained - a rule <em>nisi</em> and <em>interim</em> interdict in the following terms:</p> </li> </ol><p>  </p> <p> “1. A rule<em> nisi</em> is issued calling upon the respondents to show cause …, why-</p> <p>  </p> <ol><li> <ol><li> <p> the decision, taken by the first, second and third respondents to settle or approve the settlement of (the settled application) by selling and granting to the fourth or fifth respondent a trophy hunting concession in the Mamili National Park, should not be reviewed and set aside or, alternatively, should not be declared to be unconstitutional, invalid and unlawful;</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="2"><li> <p> the first and second respondents should not be interdicted from entering into, in consequence of the settlement referred to in paragraph 1.1, any agreement with the fourth or fifth respondent or from otherwise implementing the decision to so settle that matter by selling and granting a trophy hunting concession in the Mamili National Park or elsewhere to the fourth or fifth respondent;</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="3"><li> <p> the first, second and third respondents and, in the event of the fourth or fifth respondent opposing the application, the fourth and/or fifth respondent (as the case may be), should not to pay the costs of this application jointly and severally, the one paying the other to be absolved.</p> </li> </ol></li> </ol><p>  </p> <ol start="2"><li> <p> Pending the final adjudication of this application-</p> </li> </ol><p>  </p> <ol><li> <ol><li> <p> the first and second respondents are interdicted from entering into, in consequence of the settlement referred to in paragraph 1.1 above, any agreement with the fourth or fifth respondent or from otherwise implementing the decision to settle that matter by selling and granting a trophy hunting concession in the Mamili National Park or elsewhere to the fourth or fifth respondents;</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="2"><li> <p> the fourth and fifth respondents are interdicted from commencing any hunting activities in the Mamili National Game Park in consequence of the aforesaid settlement or any agreement entered into in terms of that settlement.”</p> </li> </ol></li> </ol><p>  </p> <ol start="2"><li> <p> At the outset of the rule <em>nisi</em>-proceedings, the respondents’ counsel challenged the applicant’s <em>locus standi</em> to bring this application. However, later in argument she informed the Court that the respondents did not object to the rule <em>nisi</em> being issued (albeit in a slightly amended form) subject to their right to resist confirmation thereof on the return day, <em>inter alia</em>, on the question of standing. At that stage of the proceedings, their objection was mainly against interdictory relief being granted in the interim.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Because standing was a threshold issue<sup><a class="sdfootnoteanc" href="#sdfootnote1sym" name="sdfootnote1anc" id="sdfootnote1anc"><sup>1</sup></a></sup> and the relief contemplated in the interim interdict would essentially be repeated - albeit in the form of a final interdict - had the rule <em>nisi</em> been made absolute on the return date, the Court had to decide thereon before it could consider the applicant’s entitlement to the rule and interim relief. It held that, on the papers filed during that stage in the proceedings, the applicant had the requisite standing to move the relief prayed for. By reserving their rights on standing, the issue remained alive and had to be finally decided on the return day after consideration of all the affidavits which had been filed in the application. The affidavits filed and discovery made after the rule had been issued did not add much to the issue of standing and, because it has not been pressed in argument on the return day, it will suffice for purposes of these reasons to capture the essence of the Court’s findings on the issue in its earlier judgment and, where necessary, expand thereon.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Initially, it was contended on behalf of the respondents by Ms Engelbrecht that the applicant had no <em>locus standi </em>to take issue with the Minister’s decision because he had no direct or substantial interest in the Morris-application. He was not cited as a party to it and, had he been, it would have been tantamount to a misjoinder. By parity of reasoning, she argued, he could not be said to have any interest in the settlement of that application – which he was, in effect, seeking to set aside in this application. The argument loses sight of one important consideration: Whereas the relief prayed for in the Morris-application was limited to prevent implementation of the sale of concessions at the auction pending judicial review of the decision to preclude the fourth and fifth respondents from participating, the subsequent settlement went well beyond that. It introduced an element that did not form part of the relief originally sought in the application, i.e. the sale by private treaty of a hunting concession to the fourth respondent in an area that had not been one of the concession areas available for auction. Had the terms of the settlement remained within the four corners of the relief prayed for, Mr Van der Byl SC argued on behalf of the applicants, they would not have had any quarrel with it or, for that matter, any standing to question it. It is precisely to the extent that the terms of the settlement went beyond the relief contemplated, that it impacted on the constitutional rights and legal interests of the applicant and had given them standing to bring this application.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> I agree with the distinction drawn by counsel, but it is only one of consequence if a rational connection is shown to exist between the challenged administrative action and the constitutional rights and legal interests of the applicant allegedly affected by it which, in a constitutional setting, must be sufficiently direct and substantial to confer upon the applicant the legal right to challenge it under Article 25(2) of the Constitution as an “aggrieved person”.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Under common law, the question of standing (in the sense of an actionable interest) has always been regarded as an incidence of procedural law. The assessment of the concept as an aspect of procedural (rather than substantive) law allows the Court a greater measure of flexibility<sup><a class="sdfootnoteanc" href="#sdfootnote2sym" name="sdfootnote2anc" id="sdfootnote2anc"><sup>2</sup></a></sup> in determining whether, given the facts of the particular matter, the substance of the right or interest involved and the relief being sought, <em>locus standi</em> has been established. Moreover, although the nature of the interest to be shown for standing is captured in the clipped phrase “direct and substantial”, the scope and ambit thereof are not capable of exact delineation<sup><a class="sdfootnoteanc" href="#sdfootnote3sym" name="sdfootnote3anc" id="sdfootnote3anc"><sup>3</sup></a></sup> by rules of general application which are cast in stone.<sup><a class="sdfootnoteanc" href="#sdfootnote4sym" name="sdfootnote4anc" id="sdfootnote4anc"><sup>4</sup></a></sup> Whether a litigant’s interest in the subject matter of the litigation justifies engagement of the Court’s judicial powers, must be assessed with regard to the peculiar facts and circumstances of each case. What will generally not suffice, is apparent from the illuminating judgment of Botha AJ on the issue of <em>locus standi </em>in <em>Jacobs en 'n Ander v Waks en Andere,</em> 1992 (1) SA 521 (A) at 533J – 534C<sup><a class="sdfootnoteanc" href="#sdfootnote5sym" name="sdfootnote5anc" id="sdfootnote5anc"><sup>5</sup></a></sup>: an interest which is abstract, academic, hypothetical or simply too remote<sup><a class="sdfootnoteanc" href="#sdfootnote6sym" name="sdfootnote6anc" id="sdfootnote6anc"><sup>6</sup></a></sup>. Considerations such as that the interest is “current”, “actual” and “adequate” are vital in assessing whether a litigant has standing in the circumstances of a case.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> These common law principles and the measure of flexibility they allow the Court is an important reference, but not the true criteria, for deciding standing when litigants claim that their fundamental rights and freedoms protected under the Constitution have been infringed, derogated from or diminished. Whilst it is accepted for purposes of this judgment on the basis of the <em>Dalrymple</em>-case<sup><a class="sdfootnoteanc" href="#sdfootnote7sym" name="sdfootnote7anc" id="sdfootnote7anc"><sup>7</sup></a></sup> that our law does not recognise standing on the basis of a citizen’s action to vindicate the public interest, the Court has relaxed the common law criteria to establish standing in appropriate circumstances. It has done so where the liberty of another individual is involved<sup><a class="sdfootnoteanc" href="#sdfootnote8sym" name="sdfootnote8anc" id="sdfootnote8anc"><sup>8</sup></a></sup> (although it has been regarded as more of an exception to the rule) and (in Britain) when it is necessary <em>ex debito justitiae</em><sup><a class="sdfootnoteanc" href="#sdfootnote9sym" name="sdfootnote9anc" id="sdfootnote9anc"><sup>9</sup></a></sup><em> </em>to curb an abuse of public power. But, it is especially within the context of the protection and promotion of human rights values after the new constitutional dispensation created on Independence, that a more purposive approach must be adopted to accord individuals and classes of individuals standing to enjoy the full benefit of their entrenched rights and to effectively maintain and enhance the values expressed therein.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Albeit in a different constitutional dispensation, this is also the approach which has been adopted by the majority of the Constitutional Court in South Africa. Under s. 7(4)(a) of the South African Constitution, a person referred to in paragraph (b) thereof is entitled to apply to a competent court of law for appropriate relief (which may include a declaration of rights) when “an infringement of or threat” to any fundamental right entrenched in the Constitution is alleged. In <em>Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others</em>, 1996 (1) SA 984 (CC) at 1082G-H] Chaskalson P expressed the views he held on the approach to <em>locus standi</em> under the South African Constitution as follows at par [165]:</p> </li> </ol><p>  </p> <p> “Whilst it is important that this Court should not be required to deal with abstract or hypothetical issues, and should devote its scarce resources to issues that are properly before it, I can see no good reason for adopting a narrow approach to the issue of standing in constitutional cases. On the contrary, it is my view that we should rather adopt a broad approach to standing. This would be consistent with the mandate given to this Court to uphold the Constitution and would serve to ensure that constitutional rights enjoy the full measure of the protection to which they are entitled….”.</p> <p>  </p> <p> The reasons why a broader approach should be adopted are also to be found in the reasoning of O’Regan J in the same case at par [229] on p.1103E-H of the same judgment:</p> <p>  </p> <p> “This expanded approach to standing is quite appropriate for constitutional litigation. Existing common-law rules of standing have often developed in the context of private litigation. As a general rule, private litigation is concerned with the determination of a dispute between two individuals, in which relief will be specific and, often, retrospective, in that it applies to a set of past events. Such litigation will generally not directly affect people who are not parties to the litigation. In such cases, the plaintiff is both the victim of the harm and the beneficiary of the relief. In litigation of a public character, however, that nexus is rarely so intimate. The relief sought is generally forward-looking and general in its application, so that it may directly affect a wide range of people. In addition, the harm alleged may often be quite diffuse or amorphous. Of course, these categories are ideal types: no bright line can be drawn between private litigation and litigation of a public or constitutional nature. Not all non-constitutional litigation is private in nature. Nor can it be said that all constitutional challenges involve litigation of a purely public character: a challenge to a particular administrative act or decision may be of a private rather than a public character. But it is clear that in litigation of a public character, different considerations may be appropriate to determine who should have standing to launch litigation….”</p> <p>  </p> <ol start="2"><li> <p> It may be argued that s.7(4)(a) of the South African Constitution – especially if read with par (b) thereof – has been cast in broader terms than Article 25(2) of our Constitution which provides:</p> </li> </ol><p>  </p> <p> “Aggrieved persons who claim that a fundamental right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled to approach a competent Court to enforce or protect such a right or freedom …”</p> <p>  </p> <p> That, however, does not detract from the underlying principle that this Court, in giving effect to its constitutional duty under Article 5 to respect and uphold the fundamental rights and freedoms enshrined in Chapter 3 of the Constitution, must also interpret Article 25 (which is part of Chapter 3 and the rights contemplated thereunder) in a broad, liberal and purposive way – as this Court and the Supreme Court have held on numerous occasions in respect of other Articles in the same Chapter.<sup><a class="sdfootnoteanc" href="#sdfootnote10sym" name="sdfootnote10anc" id="sdfootnote10anc"><sup>10</sup></a></sup> It has been held that “aggrieved persons” do not include those who sue on the basis of derivative rights (such as a sub-contractor or sub-lessee)<sup><a class="sdfootnoteanc" href="#sdfootnote11sym" name="sdfootnote11anc" id="sdfootnote11anc"><sup>11</sup></a></sup> but judicial precedent on the interpretation of that phrase is limited and will undoubtedly require further judicial elaboration in future to determine which persons and classes of persons (or their representatives) are accorded the right to seek protection or enforcement of their fundamental rights from the Courts. With the cautionary remarks of Dumbutshena AJA in <em>Kauesa v Minister of Home Affairs,</em><sup><em><a class="sdfootnoteanc" href="#sdfootnote12sym" name="sdfootnote12anc" id="sdfootnote12anc"><sup>12</sup></a></em></sup> that “(c)onstitutional law in particular should be developed cautiously, judiciously and pragmatically if it is to withstand the test of time” in mind, I shall, in the analysis what follows go no further than the exigencies of this case require.</p> <p>  </p> <ol start="2"><li> <p> Whereas the applicant does not stand in a “direct administrative-law relationship” with the first, second and third respondents (such as the one created by the settlement between the second and fourth respondents), he claimed that his rights and interests flowing from his general relationship with that authority had been directly affected by the agreement between those respondents. “This will be the case, for example, where a concession is granted by one person and the interests of another are affected by the granting of the concession”.<sup><a class="sdfootnoteanc" href="#sdfootnote13sym" name="sdfootnote13anc" id="sdfootnote13anc"><sup>13</sup></a></sup></p> </li> </ol><p>  </p> <ol start="2"><li> <p> The Court cannot lose sight of the fact that the concession allows for the exploitation of natural resource falling in the public domain. There is a pressing environmental and economical need that those resources should be managed responsibly and, ultimately, for the public benefit. To that end, it has been established by the applicant that a policy was developed and applied by the first respondent for the sustainable exploitation of game on State land in the form of concessions to which a particular category of persons (i.e. professional hunters) had equal access. That policy, intended to bring about administrative fairness and transparency in the management of that natural resource, it appears, has been consistently applied since 1992. I do not need to express any views on the 1998 affirmative action grant except to point out that affirmative action is, in its essence, not a concept separate and distinct from the equality-principle entrenched in our Constitution - it is an integral part thereof aimed at bringing about true equality of historically disadvantaged and minority groups. The Government has clearly demonstrated its commitment to redress social, economical and educational imbalances in Namibian society arising out of past discriminatory laws or practices by adopting and implementing a policy of affirmative action. Inasmuch as the 1998 affirmative action grant might have constituted a deviation from the established practise regarding the granting of concessions, it may well have been done in compliance with that policy and the express empowering provisions contained in Article 23 of the Constitution.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The application of the policy and practise in relation to concessions have been reaffirmed in December 1999 when the second respondent recommended to Cabinet (and Cabinet apparently approved) that trophy hunting concessions for the 3 years that follow should be sold “by auction to Namibian registered persons who comply with the conditions for sale”. Given, what at least <em>prima facie</em> appears to be a consistent practise of allowing persons falling within the aforementioned category to have equal access to the acquisition of concessions, those persons have an interest - more immediate and substantial than those of the public in general - to be aggrieved if the second respondent unlawfully deviates from it. I must note here in passing that, in deciding the question of the applicant’s standing, the Court has to assume that the administrative action, which is the subject matter of the review, is a nullity<sup><a class="sdfootnoteanc" href="#sdfootnote14sym" name="sdfootnote14anc" id="sdfootnote14anc"><sup>14</sup></a></sup>. When the second respondent purports to act on an administrative decision which is assumedly void <em>ab initio </em>by unlawfully granting a hunting concession by private treaty to the fourth respondent, the applicant and other persons similarly qualified as professional hunters who manifested an interest in obtaining trophy hunting concessions have reasonable grounds to feel themselves aggrieved for having been denied the opportunity to compete on an equal footing for the concession. In seeking a review of that decision, they would not assert their grievances as mere taxpayers or citizens generally, but as registered professional hunters with a special interest in the management and sustainable utilisation of that public resource; as persons who have previously held trophy hunting concessions and who, by participation in the earlier auction, have manifested an interest in again competing for one on an equal footing with others similarly situated. Even if the phrase “aggrieved persons” is not to be applied on the basis of a subjective assessment - and I expressly refrain from finding that, on a purposive approach, it may not be so understood - but falls to be assessed by the more stringent standard of reasonableness, I am satisfied that a reasonable person in the applicant’s position would have had cause to be aggrieved and to claim that his or her fundamental rights have been infringed or threatened by the assumedly unlawful decision of the second respondent. For these reasons, the applicant had adequate cause to be aggrieved and to claim enforcement or protection of his fundamental rights as contemplated in Article 25(2) of the Constitution. It is on this premise that the Court proceeded to consider the merits of the application and made the order it did.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The enquiry into the merits of the application seeks to ascertain whether the unlawfulness of the administrative action, which has been assumed in assessing the applicant’s <em>locus standi</em>, has indeed been established, regard being had to the requirements for a final interdict, the incidence of <em>onus </em>and the approach to be adopted by the Court in evaluating the evidence as a whole and deciding on the factual disputes raised in the affidavits of the contesting litigants in particular.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> It is common cause that the practices and policies around trophy hunting concessions on State land were developed around the provisions of sections 28(1)(a), 36(1)(a) and 78(f) of the Ordinance. They provide as follows:</p> </li> </ol><p>  </p> <p> “”28. (1)(a) Subject to the provisions of Chapter IV no person shall, without the written permission of the Minister, hunt any huntable game, … or exotic game or any other wild animal on any land, including communal land, owned by the Government of the Territory or a representative authority.</p> <p>  </p> <p> 36. (1)(a) Notwithstanding anything to the contrary in this Ordinance contained, the Minister may allow any person from any country or territory under a permit granted by the Minister to hunt species of game, and the number (but not exceeding two) of each such species determined by the Minister and mentioned in such permit, in the territory for the sake of trophies.”</p> <p>  </p> <p> “78. The Minister may –</p> <p> (a) …</p> <p> (f) take the measures which it may deem necessary or desirable for the purchase and sale of wild animals, exotic game …, whether alive or dead;”</p> <p>  </p> <p> The constitutionality of these provisions is not in issue. It is also not contended by the applicant that the sections do not provide an adequate legislative framework for the sale of trophy hunting concessions. His grievance relates to the manner in which they have been applied, i.e. in selling a concession to the fourth respondent by private treaty rather than by auction to the highest bidder. It is the second respondent’s decision to do so which, the applicant says, derogated from his right to equality, fair administrative action and the freedom to practise his profession protected under Articles 10, 18 and 21(1)(j) of the Constitution; which infringed his legitimate expectation to be heard before the Minister deviated from the longstanding practice and policy regarding the sale of hunting concessions; which conflicted the Tender Board Act, 1996 and the regulations thereunder and which was made without any factual or legal basis. In what follows, I shall deal with each of these contentions in the order in which they have been mentioned.</p> <p>  </p> <ol start="2"><li> <p> Mr Van Der Byl argued on behalf of the applicant that the second respondent was obliged to apply the provisions of the Ordinance fairly and reasonably in granting concessions and, as the Government had done for more than 10 years, to treat all interested and qualified persons on an equal basis without favour or prejudice. He contends that even before constitutional entrenchment of the right to equality the Courts have held that a law should not be construed to achieve apparently purposeless, illogical and unfair discrimination or differentiation between persons who might fall within its ambit.<sup><a class="sdfootnoteanc" href="#sdfootnote15sym" name="sdfootnote15anc" id="sdfootnote15anc"><sup>15</sup></a></sup> Referring to the “rational connection”, “reasonable classification” and “intelligible differentia” criteria developed in local and international law around the principle of constitutionally entrenched equality,<sup><a class="sdfootnoteanc" href="#sdfootnote16sym" name="sdfootnote16anc" id="sdfootnote16anc"><sup>16</sup></a></sup> he submits that the second respondent’s decision to sell a concession to the fourth respondent by private treaty differentiated between the latter and other professional hunters without there being a rational connection to a legitimate governmental purpose for the differentiation. The applicant complained that he found himself in exactly the same position in this application as the one in which the fourth respondent had been in the Morris-application, yet, whereas the fourth respondent was rewarded with a concession, the applicant’s application was “vehemently opposed”. Mr Smuts, who appeared with Ms Engelbrecht for the respondents on the return day, took issue with the contention that the applicant and the fourth respondent were similarly situated. Not all forms of differentiation violate the constitutional demand for equality, he contended,<sup><a class="sdfootnoteanc" href="#sdfootnote17sym" name="sdfootnote17anc" id="sdfootnote17anc"><sup>17</sup></a></sup> and are permissible if persons are not similarly situated<sup><a class="sdfootnoteanc" href="#sdfootnote18sym" name="sdfootnote18anc" id="sdfootnote18anc"><sup>18</sup></a></sup>.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> It is common cause that the administrative decisions regarding the sale of trophy hunting concessions differentiated between the applicant and the fourth respondent. But, to assess the legality of the differentiation only with reference the Minister’s decision to sell a concession to the fourth respondent by private treaty rather than by public auction, would ignore the history behind the decision. It is in the events which preceded the Minister’s decision that the <em>ratio</em> of the differentiation is to be found. The applicant’s contentions lose sight of the fact that the fourth respondent was the only professional hunter interested in acquiring a concession who had been denied an opportunity to competed for one; that the Court held in the Morris-application that his exclusion had been <em>prima facie</em> unlawful; that the Minister was constrained to concede that the fourth respondent had an unassailable case of unfair discrimination and treatment and, finally, that the Minister’s decision to settle the case, which is the subject matter of this application, was clearly intended to remedy the disadvantage suffered by the fourth respondent as a consequence of his unlawful exclusion from the auction. If the differentiation complained of was simply a mechanism to rebalance the scale of equality by adding the same measure as that by which the fourth respondent had been unlawfully disadvantaged earlier, it could hardly be contended that the differentiation amounted to constitutionally impermissible discrimination – in principle, no more than affirmative action is permitted within the ambit of the fundamental right to equality as a means to redress the disadvantages suffered by persons as a result of past discriminatory policies and practices. The fourth respondent was disadvantaged <em>vis-à-vis</em> the other professional hunters by his unlawful exclusion from the auction: the others could compete on an equal basis (although not all equally successful) for concessions, only he was unlawfully denied the opportunity to do so. It is within this context that the legality of the differentiation complained about falls to be decided.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The nature of the differentiation cannot be brought within the ambit of one or more of the enumerated classifications mentioned in Article 10(2) of the Constitution “which, historically, were singled out for discriminatory practices exclusively based on stereotypical application of presumed group or personal characteristics”.<sup><a class="sdfootnoteanc" href="#sdfootnote19sym" name="sdfootnote19anc" id="sdfootnote19anc"><sup>19</sup></a></sup> This is therefore not a case of a differentiating classification which is suspect by its nature and the person or body which has made it bears the burden to prove that it does not amount to constitutionally impermissible “discrimination” in the pejorative sense or that it is otherwise authorised under Article 23 of the Constitution. The applicant’s case to be limited to the contention that the differentiation violated his right to “equal treatment before the law” entrenched in Article 10(1) of the Constitution.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> In dealing with Article 10(1), the Supreme Court<sup><a class="sdfootnoteanc" href="#sdfootnote20sym" name="sdfootnote20anc" id="sdfootnote20anc"><sup>20</sup></a></sup> approved the following <em>ratio</em> in <em>Prinsloo v Van der Linde and Another</em>:<sup><a class="sdfootnoteanc" href="#sdfootnote21sym" name="sdfootnote21anc" id="sdfootnote21anc"><sup>21</sup></a></sup></p> </li> </ol><p>  </p> <p> “…in order to govern a modern country efficiently and to harmonise the interests of all its people for the common good, it is essential to regulate the affairs of its inhabitants extensively. It is impossible to do so without classifications which treat people differently and which impact on people differently. It is unnecessary to give examples which abound in everyday life in all democracies based on equality, and freedom. . . . In regard to mere differentiation the constitutional state is expected to act in a rational manner. It should not regulate in an arbitrary manner or manifest ''naked preferences'' that serve no legitimate governmental purpose for that would be inconsistent with the rule of law and the fundamental premises of the constitutional state. . . . Accordingly, before it can be said that mere differentiation infringes s 8 it must be established that there is no rational relationship between the differentiation in question and the governmental purpose which is proffered to validate it.”</p> <p>  </p> <p> This approach, it seems, conforms to one of the authorities relied on by the applicant. Warwick McKean, <em>op.cit.</em><sup><em><a class="sdfootnoteanc" href="#sdfootnote22sym" name="sdfootnote22anc" id="sdfootnote22anc"><sup>22</sup></a></em></sup>, in discussing equality under the Indian and American constitutions summarised the position as follows:</p> <p>  </p> <p> “”The equal protection clause has never been thought to require the same treatment of all persons despite different circumstances. Rather, it prevents states from arbitrarily treating people differently under their laws. Whether any such differing treatment is deemed to be arbitrary depends on whether or not it reflects ‘an appropriate differentiating classification among those affected’. Thus the Courts have evolved a doctrine of ‘reasonable classification’.</p> <p>  </p> <p> To be reasonable, a classification must always rest upon some real and substantial distinction bearing a reasonable and just relation to things in respect of which the classification is made, which includes all who are similarly situated and none who are not.”</p> <p>  </p> <ol start="2"><li> <p> Differentiation, without more, does not detract from the applicant’s right to equal treatment under the law. For differentiation to be constitutionally impermissible under Article 10(1), it must amount to discrimination in the pejorative sense by being “unfair” or “unreasonable” in the circumstances. It is not measured by a mathematical formula to establish whether there had been identity of treatment, but is assessed with reference to a legal model based on the values of reasonableness and fairness: It requires that the differentiation must both be intelligible and rationally connected to the legitimate governmental objective advanced for its validation<sup><a class="sdfootnoteanc" href="#sdfootnote23sym" name="sdfootnote23anc" id="sdfootnote23anc"><sup>23</sup></a></sup>. The burden to prove that the differentiation is not intelligible or rationally connected to a legitimate governmental objective is borne by the person who challenges the constitutionality thereof. In <em>Mwellie v Ministry of Works, Transport and Communication and Another</em><sup><em><a class="sdfootnoteanc" href="#sdfootnote24sym" name="sdfootnote24anc" id="sdfootnote24anc"><sup>24</sup></a></em></sup> this Court referred with approval to an extract from Willis: <em>Constitutional Law,</em> (1) 1<sup>st</sup> ed., at 579 in which the author expressed the view that the “(o)ne who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis.” The Court held that the <em>onus </em>was on the plaintiff who challenged the constitutionality of a statutory limitation for the institution of claims and continued:</p> </li> </ol><p>  </p> <p> “If therefore, in the present case, the onus is on the plaintiff to prove the unconstitutionality of Section 30(1) on the basis that it infringes the plaintiffs right of equality before the law, it will, on the findings made by me, have to show that the classification provided for in the section is not reasonable, or is not rationally connected to a legitimate object or to show that the time of prescription laid down in the section was not reasonable. Until one or all of these factors are proved it cannot be said that there was an infringement of the plaintiff’s right of equality before the law. This, in my opinion is because I have found that the constitutional right of equality before the law is not absolute but that its meaning and content permit the Government to make statutes in which reasonable classifications which are rationally connected to a legitimate object, are permissible.”</p> <p>  </p> <p>  </p> <ol start="2"><li> <p> It is in this context that I must deal with a realted argument advanced by counsel on behalf of the applicant. The respondents filed short answering affidavits prior to the hearing on the interim relief. In those affidavits they incorporated by reference the more extensive answering affidavits filed by them in opposition to the pending Cilliers-application. That application was essentially for the same declaratory relief and, in effect, raised the same factual and legal issues as this one. Although the respondents had reserved their rights to amplify their answering affidavits in this application should the Court grant a rule <em>nisi </em>and interim relief, they did not avail themselves of that right. Their failure to do so, counsel for the respondents submitted, means that the case which the applicant had established on a <em>prima facie</em> basis for the interim relief became “conclusive” against the respondents on the return day.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> This argument loses sight, not only of the different criteria by which the evidence is measured on the return day for final interdictory relief<sup><a class="sdfootnoteanc" href="#sdfootnote25sym" name="sdfootnote25anc" id="sdfootnote25anc"><sup>25</sup></a></sup>, but, more importantly, the very different approach the Court takes in evaluating the evidence at the interim and final stages of the proceedings respectively. The approach which the Court will take in assessing the evidence at the interim stage is succinctly summarised with reference to a long line of judgements in point<sup><a class="sdfootnoteanc" href="#sdfootnote26sym" name="sdfootnote26anc" id="sdfootnote26anc"><sup>26</sup></a></sup> by Nicolson J in <em>Ladychin Investments (Pty) Ltd v South African National Roads Agency Ltd and Others.</em><sup><em><a class="sdfootnoteanc" href="#sdfootnote27sym" name="sdfootnote27anc" id="sdfootnote27anc"><sup>27</sup></a></em></sup> In summary, the Court’s approach to factual disputes on the affidavits at the interim stage will be as follows<sup><a class="sdfootnoteanc" href="#sdfootnote28sym" name="sdfootnote28anc" id="sdfootnote28anc"><sup>28</sup></a></sup>:</p> </li> </ol><p>  </p> <p> “3. Even if there are material conflicts of fact the Courts will still grant interim relief. The proper approach is to take the facts as set out by the applicant, together with any facts set out by the respondent, which the applicant cannot dispute, and to consider whether, having regard to the inherent probabilities, the applicant should on those facts obtain final relief at a trial.</p> <p> 4. The facts set up in contradiction by the respondent should then be considered. If serious doubt is thrown on the case of the applicant he should not succeed in obtaining temporary relief, for his right, prima facie established, may only be open to 'some doubt'.</p> <p> 5. If there is mere contradiction, or unconvincing explanation, the matter should be left to trial and the right be protected in the mean time, subject of course to the respective prejudice in the grant or refusal of interim relief.”</p> <p>  </p> <p> The facts - and factual disputes in particular – will be adjudicated differently on the return day, which, in a sense, is the converse of approach adopted at the interim stage.</p> <p>  </p> <p> “It is trite law that any dispute of fact in application proceedings should be adjudicated on the basis of the facts averred in the applicant's founding affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, whether or not the latter has been admitted by the applicant, unless a denial by the respondent is not such as to raise a real, genuine or bona fide dispute of fact or a statement in the respondent's affidavits is so far-fetched or clearly untenable that the Court is justified in rejecting it merely on the papers.”<sup><a class="sdfootnoteanc" href="#sdfootnote29sym" name="sdfootnote29anc" id="sdfootnote29anc"><sup>29</sup></a></sup></p> <p>  </p> <ol start="2"><li> <p> The differing approaches may be best illustrated by reference to one important factual dispute in this application. Although the respondents denied it, the Court had to accept for purposes of deciding on the interim relief the applicant’s allegation that the quota of 4 elephant bulls, 4 buffalo bulls, 2 male lions and 4 hyenas was worth “far more” than the N$408 624 <em>per annum</em> payable under the concession by the fourth respondent and that, had the concession been offered for sale at an auction, the applicant would have offered “well in excess of N$½ million for it. This allegation strongly suggested that the Minister had acted irresponsibly in disposing of natural resources in the pubic domain; that his decision, contrary to his duty under Article 18 of the Constitution, conferred a benefit on the fourth respondent which was so disproportionate that it could only be unfair and unreasonable in the context of Cabinet’s policy of equal treatment and that the applicant and other professional hunters had been treated unequally under Article 10(1). On the return day, however, the Court had to adjudicate the issues on the basis of the respondents’ affidavits in which it was stated that the value of each species of animal sold in terms of the concession had been determined with reference to the average price pertaining to such species obtained at the auction. In the calculation, which appears from an attached memorandum to the Minister, the lower prices obtained for the Waterberg and Mangetti concessions were disregarded for purposes of calculating the average because the one did not include elephant and lion and the other had a history of very low prices. This evidence belied the allegations on which the interim relief had been granted and, in the final adjudication, impacted significantly on the perception of unequal, unfair and unreasonable treatment which the applicant sought to establish in his founding papers.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> In applying this approach to the affidavits in this matter, the first question to be answered is whether the applicant has shown on a balance of probabilities that the differentiation between the fourth respondent and him was not intelligible<sup><a class="sdfootnoteanc" href="#sdfootnote30sym" name="sdfootnote30anc" id="sdfootnote30anc"><sup>30</sup></a></sup>. As Warwick McKean reasoned in the quotation referred to earlier, “the equal protection clause has never been thought to require the same treatment despite different circumstances”. In <em>Mwellie</em><sup><a class="sdfootnoteanc" href="#sdfootnote31sym" name="sdfootnote31anc" id="sdfootnote31anc"><sup>31</sup></a></sup>’s-case, this Court referred to the “similarly situated” criterion in constitutional claims for equality in the following manner:</p> </li> </ol><p>  </p> <p> “On the basis that reasonable classifications do not militate against Article 10(1) of the Constitution it is first of all necessary to determine whether the classification in the present instance accord the plaintiff worse treatment <em>than others in a similar position</em>.”</p> <p> (The emphasis is mine)</p> <p>  </p> <p> Notwithstanding applicant’s contentions to the contrary, it is apparent that he and the fourth respondent were not similarly situated. The applicant had an opportunity to compete for a concession at the auction. The fourth respondent was denied that opportunity. The differentiation which resulted from the Minister’s decision was made to redress the disadvantage he had suffered as a consequence of an official’s unlawful decision to deny him participation. The <em>ratio</em> for the differentiation made by the Minister was therefore clearly intelligible.</p> <p>  </p> <ol start="2"><li> <p> The next enquiry is whether the applicant proved that the differentiation was not rationally connected to a legitimate governmental objective. The objective of the settlement was to redress by a calculated measure the extent to which the fourth respondent had been disadvantaged by his exclusion from participation in the auction for trophy hunting concessions on State land in breach of his fundamental right to equal treatment, to administrative fairness and of the Cabinet’s policy to transparency and equality in the grant of those concessions. The predicament of the Government caused by the official’s decision to exclude the fourth respondent and with which the Minister was faced in the legal proceedings against him was apparent from the advice he had received: The Government was, on a consensus of opinion, in the wrong; its cause in the pending proceedings was lost; continued resistance to confirmation of the rule would only have served to delay the inevitable, escalate costs for the Government and detract from its constitutional commitment and responsibility to uphold fundamental rights. Moreover, given the terms of the interim interdict in the Morris-application, the auctioned concessions could not be exploited pending finalisation of the application; win or lose, the longer the delay, the greater the Government’s exposure to claims for damages by the concession-holders (who could not be blamed for the predicament) and the greater the loss of income to be derived by the State from the concessions. If the Morris-application would ultimately succeed against the Government, the potential of further claims for damages from previously successful bidders would be a likely result: if they had to pay more for the same concession, they would endeavour to recover the difference and, if those concessions would be sold to higher bidders, their claims would be for the loss of profits on the concessions which they previously held.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> In these circumstances, the expeditious settlement of the Morris-application was clearly a legitimate governmental objective. The applicant suggested that, in settlement, the Minister should have had the Mamili concession auctioned instead of granting it to the fourth respondent by private treaty. The suggested course, in my view, would not have remedied the disadvantage which the fourth respondent had suffered: he would then only have the opportunity to compete for one concession whereas the applicant (and the other professional hunters similarly situated) would also be entitled to bid on that one in addition to the many others auctioned earlier. Moreover, the applicant’s suggestion seems to be somewhat self-serving: Having been unsuccessful to win a concession at the auction, he would normally have had to wait a further three years to compete afresh for one. However, when the Minister made a further concession available to address the fourth respondent’s unlawful exclusion from the auction, he saw an opportunity to get a further bite at the proverbial cherry.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Other than to offer financial compensation for the damages suffered by the fourth respondent’s in consequence of the official’s unlawful decision, the Minister was not left with other apparent choices but the one he ultimately opted for. Whether the former would have been preferable to the latter is not the issue which this Court must decide. What it must examine is whether the applicant proved that there was no rational connection between the differentiation complained of and the objective of the settlement. For the reasons I have given, the applicant clearly failed to discharge that burden.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The second ground on which the applicant sought to assail the Minister’s decision is based on his right to fair and reasonable administrative action protected under Article 18 of the Constitution. The applicant alleged that, in selling and granting the Mamili-concession to the fourth respondent without calling for tenders or offering it for sale by way of auction, the Minister acted unfairly. In argument, his counsel submitted that in attempting to remedy the alleged wrong committed to the fourth respondent, the Minister perpetrated yet another: one against the applicant and other professional hunters similarly situated. As “two wrongs cannot make a right”, counsel contended, the Minister should to have done one of three things instead: he should have persisted with his opposition to the Morris-application or conceded the relief prayed for and auctioned all the concessions afresh or, after having obtained Cabinet approval, auctioned the Mamili-concession.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> It is of some significance to note that the applicant’s affidavit does not seek to establish unreasonableness with reference to specific common law grounds of review - such as when a person has acted “<em>mala fides</em> or from ulterior and improper motives, if he had not applied his mind to the matter or exercised his discretion at all, or if he had disregarded the express provisions of a statute”.<sup><a class="sdfootnoteanc" href="#sdfootnote32sym" name="sdfootnote32anc" id="sdfootnote32anc"><sup>32</sup></a></sup> Even if I were to accept, without deciding, that the basis for interference with administrative decisions under Article 18 may be wider<sup><a class="sdfootnoteanc" href="#sdfootnote33sym" name="sdfootnote33anc" id="sdfootnote33anc"><sup>33</sup></a></sup> than under the common law, the Court is not entitled to substitute its decision for that of the functionary simply because it would have chosen another from the bouquet of available lawful options.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Earlier in this judgment, I have discussed the predicament the Minister was faced with in the Morris-application. In the course thereof, I dealt with all three the options mentioned by the applicant’s counsel and demonstrated the potentially unacceptable or unpalatable implications they could have. But the question is not whether the ones suggested by counsel would have been preferable to the one which the Minister had decided on: it is whether the Minister acted fairly and reasonably when he decided to sell the Mamili-concession to the fourth respondent by private treaty. There cannot be any quarrel that the Minister, not the Cabinet, was entrusted by the Legislature to exercise the powers, duties and functions contemplated in sections 28(1)(a), 36(1)(a) and 78(f) of the Ordinance – and that he did so. The Cabinet’s authority under those sections was brought to an end in 1996 by the promulgation of sections 1 and 12 of the Nature Conservation Amendment Act, No.5 of 1996. Cabinet was at liberty to lay down a general policy to guide the Minister in the administration of the Ordinance, but ultimately, the statutory responsibility to make administrative decisions regarding concessions vested in the Minister and in no other. I have found earlier in this judgment that the Minister’s decision was not in conflict with either the Cabinet’s policy or the constitutional principle of equality. The decision was “remedial or restitutionary”<sup><a class="sdfootnoteanc" href="#sdfootnote34sym" name="sdfootnote34anc" id="sdfootnote34anc"><sup>34</sup></a></sup> action taken within the permissible limits of the equality concept to redress the disadvantage previously occasioned in the case of the fourth respondent. In the view I have taken, the Minister’s ultimate decision to sell the concession by private treaty was clearly well-advised, rationally connected to the facts underlying it and squarely within his powers.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> There is a second reason why the applicant contended that the decision infringed on his right to administrative fairness: Given the Cabinet’s policy and the practice which had developed over a period of ten years regarding the sale of concessions, he claimed with reference to <em>Administrator, Transvaal, and Others v Traub and Others</em>,<sup><a class="sdfootnoteanc" href="#sdfootnote35sym" name="sdfootnote35anc" id="sdfootnote35anc"><sup>35</sup></a></sup> that he had a “legitimate expectation” to be heard before the Minister could deviate from the policy and practice. For the reasons I have mentioned earlier, I am not persuaded that the Minister’s decision was not in line with the Cabinet’s policy of equality: the decision was to sell the concession to the fourth respondent was intended to remedy an earlier deviation from that policy. The conditions which attached to the concession under the sale were exactly the same as those subject to which the other concessions had been auctioned and the price thereof was carefully calculated with reference to the average price achieved for other comparable concessions.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Whether the applicant had expectations that he would be heard on the matter is not the test: it is whether, viewed objectively, the demand for procedural fairness required such a hearing before the decision was taken. The concept of “legitimate expectation” is explained in <em>President of the Republic of South Africa and Others v South African Rugby Football Union and Others</em><sup><em><a class="sdfootnoteanc" href="#sdfootnote36sym" name="sdfootnote36anc" id="sdfootnote36anc"><sup>36</sup></a></em></sup>:</p> </li> </ol><p>  </p> <p> “The question whether an expectation is legitimate and will give rise to the right to a hearing in any particular case depends on whether, in the context of that case, procedural fairness requires a decision-making authority to afford a hearing to a particular individual before taking the decision. To ask the question whether there is a legitimate expectation to be heard in any particular case is, in effect, to ask whether the duty to act fairly requires a hearing in that case. The question whether a 'legitimate expectation of a hearing' exists is therefore more than a factual question. It is not whether an expectation exists in the mind of a litigant but whether, viewed objectively, such expectation is, in a legal sense, legitimate; that is, whether the duty to act fairly would require a hearing in those circumstances. It is for this reason that the English courts have preferred the concept of 'legitimate expectation' to that of 'reasonable expectation'. In <em>Council of Civil Service Unions and Others v Minister for the Civil Service</em>, 164 Lord Diplock explained that 'legitimate' should be used rather than 'reasonable':</p> <p> '. . . in order thereby to indicate that it has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantage would continue to be enjoyed, although it might well be entertained by a ''reasonable'' man, would not necessarily have such consequences'.”</p> <p> (Footnotes omitted)</p> <p>  </p> <ol start="2"><li> <p> Mr Smuts submits on behalf of the respondents that the applicant had the <em>onus</em> to establish this ground of review<sup><a class="sdfootnoteanc" href="#sdfootnote37sym" name="sdfootnote37anc" id="sdfootnote37anc"><sup>37</sup></a></sup> and that, in the circumstances of this case objectively assessed, a legitimate expectation to be heard not did not arise at all. I agree. The practice of selling concessions by auction flowed from the policy of equality and transparency. That policy is, in essence, both the reason for and the basis on which the concession was sold to the fourth respondent. Policies are generally intended to guide public authorities and influence their decisions, not to dictate them:</p> </li> </ol><p>  </p> <p> “Where a discretion has been conferred upon a public body by a statutory provision, such a body may lay down a general principle for its general guidance, but it may not treat this principle as a hard and fast rule to be applied invariably in every case. At most it can be only a guiding principle, in no way decisive. Every case that is presented to the public body for its decision must be considered on its merits. In considering the matter the public body may have regard to a general principle, but only as a guide, not as a decisive factor.”<sup><a class="sdfootnoteanc" href="#sdfootnote38sym" name="sdfootnote38anc" id="sdfootnote38anc"><sup>38</sup></a></sup></p> <p>  </p> <p> The Minister’s decision, taken within the four corners of the authority conferred on him under the Ordinance, sought to give effect to the underlying policy of equality and to address the Government’s exposure in the Morris-application. In the circumstances, his constitutional duty to act fairly and reasonably did not require of him to afford the applicant and all other professional hunters similarly situated an opportunity to be heard on the specifics of the settlement or the principle of a sale by private treaty - in any event not for as long as it was within the flexible framework of the general policy of equality. For these reasons, the applicant’s reliance on this ground must also fail.</p> <p>  </p> <ol start="2"><li> <p> The final constitutional ground on which the legality of the Minister’s decision was attacked is based on the provisions of Article 21(1)(j) which guarantee the right of every person to “practise any profession, or carry on any occupation, trade or business.” No facts or averments are advanced in the founding affidavit from which it could have been gathered in which respect the Minister’s decision derogated from or infringed the applicant’s rights under the Article. From the heads of argument filed on his behalf, the reason for his complaint became more apparent: a lucrative business developed around the system of trophy hunting concessions and, by awarding concessions in an arbitrary fashion, the Applicant’s right to practice his profession as a professional hunter “has obviously seriously been affected”. Both the principle and the premise for this submission are untenable. Given the historical and constitutional context and purpose of the freedom to economic activity espoused in by this Court in <em>Hendricks and Others v Attorney General, Namibia, and Others,</em><sup><em><a class="sdfootnoteanc" href="#sdfootnote39sym" name="sdfootnote39anc" id="sdfootnote39anc"><sup>39</sup></a></em></sup> it seeks to protect the values underlying it,<sup><a class="sdfootnoteanc" href="#sdfootnote40sym" name="sdfootnote40anc" id="sdfootnote40anc"><sup>40</sup></a></sup> not the profitability of those activities. Moreover, the submission is premised on the allegation that the Mamili-concession was arbitrarily granted, which I have found not to be the case. It is therefore not necessary to deal with this ground any further.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Initially, the applicant also challenged the Minister’s decision on the basis that it was “contrary to Tender Board Regulations”. However, given the provisions of s 7(1) of the Tender Board of Namibia Act, 1996 which make the Tender Board’s responsibility as regards the procurement of goods and services subject to the provisions of “any other law” and the respondents’ contention that s. 78(f) of the Ordinance which authorises the Minister “to take the measures which (he) may deem necessary or desirable for the …sale of wild animals …” is one such law, counsel for the applicant conceded that the Tender Board Regulations do not apply and abandoned this ground during argument.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The final ground advanced is that no factual or legal basis existed on which the Morris-application could have been settled because the fourth or fifth respondents had “indeed failed to pay annual monies for the full concession period”. Although not abandoned, this ground was also not pursued in argument. It does not appear on the papers which amount, if any, the fourth or fifth respondents had failed to pay and, if so, whether they were justified in withholding such payment. The advice which the Minister received constituted the factual and legal basis for his decision – that much is clear from the submissions and recommendations made to him and from the affidavits in this application. Whether the advice which the Minister <em>bona fide </em>acted on was correct or not, is not for this Court to determine – and, because the applicant had not been privy to the events and discussions on which the advice had been based, his rather blunt allegation does not give rise to a <em>bona fide </em>dispute.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> There was also an ancillary dispute regarding incomplete discovery which was not taken any further in argument. The applicant elected to argue the merits of the application on the return day rather than to move the application for further discovery and a postponement of the main application, if successful. Having elected to proceed in that manner, the discovery application was seemingly abandoned.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> There was no reason why costs should not follow the result but, because the respondents were initially represented by one instructed counsel and only on the return day by two such counsel, the order of costs had to be formulated accordingly.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> It is for these reasons that the Court made the following <em>ex tempore </em>order at the time:</p> </li> </ol><p>  </p> <p> “1. The rule <em>nisi</em> is discharged.</p> <p>  </p> <p> 2. The application for interdictory relief is refused.</p> <p>  </p> <p> 3. The Applicant is to pay the Respondents’ costs, such costs to include the costs of two instructed counsel for today.”</p> <div> <p> <a class="sdfootnotesym" href="#sdfootnote1anc" name="sdfootnote1sym" id="sdfootnote1sym">1</a> See: Baxter: <em>Administrative Law</em>, p. 648</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote2anc" name="sdfootnote2sym" id="sdfootnote2sym">2</a> Compare for example: <em>Roodepoort-Maraisburg Town Council v Eastern Properties (Prop) Ltd</em>, 1933 AD 87 at 103; <em>Ex parte Mouton and Another</em>, 1955 (4) SA 460 (A) at 463H.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote3anc" name="sdfootnote3sym" id="sdfootnote3sym">3</a> See: <em>Financial Services Board and Another v De Wet NO and Others</em>, 2002 (3) SA 525 (C) at 579I-580A.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote4anc" name="sdfootnote4sym" id="sdfootnote4sym">4</a> <em>Kolbatschenko v King NO and Another</em>, 2001 (4) SA 336 (C) at 346H.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote5anc" name="sdfootnote5sym" id="sdfootnote5sym">5</a> Where he said: “'In die algemeen beteken die vereiste van locus standi dat iemand wat aanspraak maak op regshulp 'n voldoende belang moet hê by die onderwerp van die geding om die hof te laat oordeel dat sy eis in behandeling geneem behoort te word. Dit is nie 'n tegniese begrip met vas omlynde grense nie. Die gebruiklikste manier waarop die vereiste beskryf word, is om te sê dat 'n eiser of applikant 'n direkte belang by die aangevraagde regshulp moet hê (dit moet nie te ver verwyderd wees nie); andersins word daar ook gesê, na gelang van die samehang van die feite, dat daar 'n werklike belang moet wees (nie abstrak of akademies nie), of dat dit 'n teenswoordige belang moet wees (nie hipoteties nie) …”</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote6anc" name="sdfootnote6sym" id="sdfootnote6sym">6</a> C.f. <em>Geldenhuys and Neethling v Beuthin,</em> 1918 AD 426 at 441; <em>Ex parte Mouton and Another</em>, <em>supra,</em> at 464A-B.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote7anc" name="sdfootnote7sym" id="sdfootnote7sym">7</a> <em>Dalrymple and Others v Colonial Treasurer,</em> 1910 TS 372 at 390.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote8anc" name="sdfootnote8sym" id="sdfootnote8sym">8</a> <em>Wood and Others v Ondangwa Tribal Authority and Another,</em> 1975 (2) SA 294 (A).</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote9anc" name="sdfootnote9sym" id="sdfootnote9sym">9</a> Discussed in Wade and Forsyth, <em>Administrative Law</em> (7<sup>th</sup> edition) at 696 – 718.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote10anc" name="sdfootnote10sym" id="sdfootnote10sym">10</a> Compare, for example: <em>Namibia Grape Growers and Exporters Association and Others v The Ministry of Mines and Energy and Others</em>, 2004 NR 194 (SC) at 209G; <em>Government of the Republic of Namibia and Another v Cultura 2000 and Another,</em> 1993 NR 328 (SC) at 340B - D (1994 (1) SA 407 (NmS) at 418F – G; <em>Minister of Defence, Namibia v Mwandinghi,</em> 1993 NR 63 (SC) at 68 - 71; <em>S v Acheson,</em> 1991 NR 1 (HC) at 10A – C and <em>S v Zemburuka (2)</em>, 2003 NR 200 (HC) at 208A-E.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote11anc" name="sdfootnote11sym" id="sdfootnote11sym">11</a> As this Court held in <em>Kerry McNamara Architects Inc. and Others v The Minister of Works, Transport and Communication and Others</em> (delivered on 6 March 1997 in case no. A 297/96</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote12anc" name="sdfootnote12sym" id="sdfootnote12sym">12</a> 1995 NR 175 (SC) at 184B.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote13anc" name="sdfootnote13sym" id="sdfootnote13sym">13</a> Wiechers, <em>Administrative Law</em>, p 278<em>.</em></p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote14anc" name="sdfootnote14sym" id="sdfootnote14sym">14</a> As Botha, J.A remarked in <em>Jacobs en 'n Ander v Waks en Andere</em>, <em>supra</em> at 536A “… om die vraag na <em>locus standi</em> uit te maak moet daar, as 'n kwessie van logika, veronderstel word dat die besluit wel ongemagtig en nietig is”. (…to decide the question of <em>locus standi</em>, it must be assumed, as a matter of logic, that the decision has indeed been impermissible and void – free translation)</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote15anc" name="sdfootnote15sym" id="sdfootnote15sym">15</a> Referring to <em>Lister v Incorporated Law Society, Natal</em>, 1969(1) 431 (N) at 434 and <em>Sekretaris van Binnelandse Inkomste v Lourens Erasmus (Edms) Bpk</em>, 1966(4) SA 434 (A) at 443.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote16anc" name="sdfootnote16sym" id="sdfootnote16sym">16</a> Discussed in <em>Harksen v Lane NO and Others</em>, 1998(1) SA 300 (CC), Warwick McKean, <em>Equality and Discrimination under International Law, </em>p 237 and Sieghart, <em>The International Law of Human Rights</em>, p 262.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote17anc" name="sdfootnote17sym" id="sdfootnote17sym">17</a> With reference to <em>Prinsloo v Van der Linde and Another,</em>1997 (3) SA 1012 (CC) at paragraphs [17], [23] – [25]; <em>Harksen v Lane NO and Others</em>, <em>supra, </em>par [45] and [46] and <em>Jooste v Score Supermarkets Trading (Pty) Ltd,</em> 1999 (2) SA 1 (CC).</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote18anc" name="sdfootnote18sym" id="sdfootnote18sym">18</a> Citing <em>Mwellie v Ministry of Works, Transport and Communication and Another</em>, 1995 (9) BCLR 1118 (NmH) in support.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote19anc" name="sdfootnote19sym" id="sdfootnote19sym">19</a> Per Strydom CJ in Muller v President of the Republic of Namibia 1999 NR 190 (SC) at 199H</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote20anc" name="sdfootnote20sym" id="sdfootnote20sym">20</a> <em>Ibid.</em>, at 199C-F</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote21anc" name="sdfootnote21sym" id="sdfootnote21sym">21</a> 1997 (3) SA 1012 (CC) at paras [24] - [26].</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote22anc" name="sdfootnote22sym" id="sdfootnote22sym">22</a> At 237</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote23anc" name="sdfootnote23sym" id="sdfootnote23sym">23</a> Compare: Sieghardt, <em>op. cit., </em>p262; <em>Müller v President of the Republic of Namibia</em>, <em>supra</em>, at 200A-B; <em>Harksen v Lane NO and Others</em> 1998 (1) SA 300 (CC) paragraphs [45] and [54]; <em>Van der Merwe v Road Accident Fund (Women's Legal Centre Trust as Amicus Curiae)</em>, 2006 (4) SA 230 (CC) at par [49].</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote24anc" name="sdfootnote24sym" id="sdfootnote24sym">24</a> 1995 (9) BCLR 1118 (Nm) at 1138E-H</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote25anc" name="sdfootnote25sym" id="sdfootnote25sym">25</a> Succinctly stated as follows in <em>Absa Bank Ltd v Dlamini,</em> 2008 (2) SA 262 (T) at 267C-E par [10]: “As far as a final interdict is concerned, the requirements are: a clear right; an injury actually committed or reasonably apprehended; and an absence of similar or adequate protection by any other ordinary remedy. As far as an interim interdict is concerned, the requirements are: a prima facie right; a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is finally granted; that the balance of convenience favours the applicant for the granting of the interim interdict; and that the applicant has no other satisfactory and adequate remedy.” See also: <em>Bahlsen v Nederloff and Another</em>, 2006 (2) NR 416 (HC) at 424C-F.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote26anc" name="sdfootnote26sym" id="sdfootnote26sym">26</a> <em>Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton, and Another</em>, 1973 (3) SA 685 (A) at 691C - G, <em>Webster v Mitchell</em>, 1948 (1) SA 1186 (W) at 1189 - 90, <em>Gool v Minister of Justice and Another</em>, 1955 (2) SA 682 (C) at 688E - F, <em>Hix Networking Technologies v System Publishers (Pty) Ltd and Another</em>, 1997 (1) SA 391 (A) at 398I - 399A and <em>Hydro Holdings (Edms) Bpk v Minister of Public Works and Another</em>, 1977 (2) SA 778 (T). See also: <em>Setlogelo v Setlogelo</em>, 1914 AD 221</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote27anc" name="sdfootnote27sym" id="sdfootnote27sym">27</a> 2001 (3) SA 344 (N)</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote28anc" name="sdfootnote28sym" id="sdfootnote28sym">28</a> At 353H-354A</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote29anc" name="sdfootnote29sym" id="sdfootnote29sym">29</a> <em>Kauesa v Minister of Home Affairs and Others,</em> 1994 NR 102 at 108G – J. This approach has been applied in many other judgments of this Court and the Supreme Court, e.g. <em>Grobbelaar and Another v Council of The Municipality of Walvis Bay,</em> 2007 (1) NR 259 (HC) at 263A-C and <em>Oppermann v President of the Professional Hunting Association of Namibia,</em> 2000 NR 238 (SC) at 251H-252B. See further: <em>Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd,</em> 1984 (3) SA 623 (A) at 634E-635C; <em>Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd,</em> 1957 (4) SA 234 (C) at 235E-G; <em>Associated South African Bakeries (Pty) Ltd v Oryx &amp; Vereinigte BÌckereien (Pty) Ltd en Andere,</em> 1982 (3) SA 893 (A) at 923G-924D.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote30anc" name="sdfootnote30sym" id="sdfootnote30sym">30</a> In Mwellie’s case, <em>supra,</em> Strydom JP quoted the following passage from Willis with approval: “One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis.”</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote31anc" name="sdfootnote31sym" id="sdfootnote31sym">31</a> At 1138B-C</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote32anc" name="sdfootnote32sym" id="sdfootnote32sym">32</a> Mentioned by Innes CJ in <em>Shidiack v Union Government (Minister of the Interior)</em> 1912 AD 642 at 651.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote33anc" name="sdfootnote33sym" id="sdfootnote33sym">33</a> Compare the decisions in <em>Derby-Lewis and Another v Chairman of the Committee on Amnesty of the Truth and Reconciliation Commission and Others,</em> 2001 (3) SA 1033 (C) at 1065E – F; <em>Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others,</em> 2000 (2) SA 674 (CC) at 708 para [85]; <em>Nieuwoudt v Chairman, Amnesty Subcommittee, Truth and Reconciliation Commission; Du Toit v Chairman, Amnesty Subcommittee, Truth and Reconciliation Commission; Ras v Chairman, Amnesty Subcommittee, Truth and Reconciliation Commission,</em> 2002 (3) SA 143 (C) at 155F – G on section 33 of the South African Constitution.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote34anc" name="sdfootnote34sym" id="sdfootnote34sym">34</a> To use the words which Moseneke, J thought to be “juridically more consonant” with “regstellende aksie” in equality jurisprudence than “affirmative action”. See: <em>Minister of Finance v Van Heerden,</em> 2004 (6) SA 121 (CC) at 136A par [29].</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote35anc" name="sdfootnote35sym" id="sdfootnote35sym">35</a> 1989 (4) SA 731 (A).</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote36anc" name="sdfootnote36sym" id="sdfootnote36sym">36</a> 2000 (1) SA 1 (CC) at 96C-G par [216]</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote37anc" name="sdfootnote37sym" id="sdfootnote37sym">37</a> With reference to <em>Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another,</em> 1988 (3) SA 132 (A) at 152A and <em>Davies v Chairman, Committee of the Johannesburg Stock Exchange</em>, 1991 (4) SA 43(W) at 47G-H.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote38anc" name="sdfootnote38sym" id="sdfootnote38sym">38</a> Per Human J in <em>Computer Investors Group Inc and Another v Minister of Finance</em>, 1979 (1) SA 879 (T) at 898C-F.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote39anc" name="sdfootnote39sym" id="sdfootnote39sym">39</a> 2002 NR 353 (HC) at 357H – 359A</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote40anc" name="sdfootnote40sym" id="sdfootnote40sym">40</a> See also the discussion of similar protection under the South African Constitution in <em>Affordable Medicines Trust and Others v Minister of Health and Others,</em> 2006 (3) SA 247 (CC) at para [59] and <em>Minister of Home Affairs and Others v Watchenuka and Another</em> 2004 (4) SA 326 (SCA) at paras [26] – [27].</p> </div></span></div></div> </div> </div> Mon, 05 Oct 2020 15:00:11 +0000 Anonymous 9353 at http://namiblii.org Namibia Grape Growers and Exporters Association and Others v Ministry of Mines and Energy and Others (SA 14 of 2002) [2004] NASC 6 (25 November 2004); http://namiblii.org/na/judgment/supreme-court/2004/6 <span class="field field--name-title field--type-string field--label-hidden">Namibia Grape Growers and Exporters Association and Others v Ministry of Mines and Energy and Others (SA 14 of 2002) [2004] NASC 6 (25 November 2004);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/786" hreflang="und">EL</a></div> <div class="field__item"><a href="/taxonomy/term/406" hreflang="und">Injunction</a></div> <div class="field__item"><a href="/taxonomy/term/593" hreflang="und">Locus standi in environmental litigation</a></div> <div class="field__item"><a href="/taxonomy/term/335" hreflang="und">Procedural Fairness</a></div> <div class="field__item"><a href="/taxonomy/term/596" hreflang="und">Minerals, oil and gas</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 10/05/2020 - 14:50</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>This case was an appeal in the Supreme Court of Namibia against a judgment that dismissed the application brought by the appellants on an urgent basis and discharging a court order issued on 5 May 2000.  This matter concerned provisions of the Minerals (Prospecting and Mining) Act No. 33 of 1992. An Exclusive Prospecting Licence 2101 (EPL 2101) was transferred to the third respondent, involved in diamond mining, on 25 June 1997 but it was alleged that its renewal happened without any notice to the landowner, involved in growing and marketing grapes, and who is one of the appellants in the case. The third respondent intended to excavate four pits of which two were situated within the area demarcated for further grape cultivation.</p> <p>The appeal focused on three main issues, namely the constitutionality of Part XV of the Minerals Act, the review application regarding the renewal of EPL 2101 in 1998 and the application based on the provisions of section 52 of the same act.  </p> <p>The court concluded that Part XV was enacted in the public interest and for a legitimate object and is a reasonable mechanism whereby similar contesting rights are balanced to ensure equal protection of those rights in terms of the Constitution.  It was on this basis that it could not be said that the provisions of Part XV of the Minerals Act are unconstitutional.  Accordingly, the appellants’ appeal was dismissed with costs including those for the postponement of the appeal and further argument.</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-rtf file--general"> <a href="https://media.namiblii.org/files/judgments/nasc/2004/6/2004-nasc-6.rtf" type="application/rtf; length=169632">2004-nasc-6.rtf</a></span> </div> <div class="field__item"> <span class="file file--mime-application-rtf file--general"> <a href="https://media.namiblii.org/files/judgments/nasc/2004/6/2004-nasc-6.rtf" type="application/rtf; length=169632">2004-nasc-6.rtf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p> CASE NO.: SA 14/2002</p> <p> IN THE SUPREME COURT OF NAMIBIA</p> <p> In the matter between</p> <table border="0" cellpadding="7" cellspacing="0" style="width:600px"><tbody><tr><td> <p> NAMIBIA GRAPE GROWERS AND EXPORTERS ASSOCIATION</p> <p>  </p> <p> NAMIBIA FARM WORKERS UNION</p> <p>  </p> <p> FTK HOLLAND BV</p> <p>  </p> <p> EXOTIC INTERNATIONAL (PTY) LTD</p> <p>  </p> <p> AUSSENKEHR TOWN DEVELOPERS (PTY) LTD</p> <p>  </p> <p> AUSSENKEHR FARMS (PTY) LTD</p> <p>  </p> <p> GRAPE VALLEY PACKERS (PTY) LTD</p> <p>  </p> <p> NAMIBIA NURSERIES (PTY) LTD</p> <p>  </p> <p> NAGRAPEX (PTY) LTD</p> <p>  </p> </td> <td> <p> FIRST APPELLANT</p> <p>  </p> <p>  </p> <p> SECOND APPELLANT</p> <p>  </p> <p> THIRD APPELLANT</p> <p>  </p> <p> FOURTH APPELLANT</p> <p>  </p> <p> FIFTH APPELLANT</p> <p>  </p> <p> SIXTH APPELLANT</p> <p>  </p> <p> SEVENTH APPELLANT</p> <p>  </p> <p> EIGHTH APPELLANT</p> <p>  </p> <p> NINTH APPELLANT</p> </td> </tr></tbody></table><p>  </p> <p> And</p> <p>  </p> <table border="0" cellpadding="7" cellspacing="0" style="width:600px"><tbody><tr><td> <p> THE MINISTRY OF MINES AND ENERGY</p> <p>  </p> <p> MINERAL ANCILLARY RIGHTS COMMISSION</p> <p>  </p> <p> NORTHBANK DIAMONDS LIMITED</p> </td> <td> <p> FIRST RESPONDENT</p> <p> SECOND RESPONDENT</p> <p>  </p> <p> THIRD RESPONDENT</p> </td> </tr></tbody></table><p>  </p> <p> CORAM: STRYDOM, A.C.J., O’LINN, A.J.A., <em>et</em> SHIVUTE, A.J.A.</p> <p> HEARD ON: 19 – 21/04/2004</p> <p> DELIVERED ON: 25/11/2004</p> <p> ___________________________________________________________________________</p> <p> <strong>APPEAL JUDGMENT</strong></p> <p> <strong>___________________________________________________________________________</strong></p> <p>  </p> <p> <u>STRYDOM, A.C.J.:</u> This is an appeal from a judgment of a single Judge dismissing the application brought by the appellants on an urgent basis and discharging the rule <em>nisi </em> which was issued on the 5<sup>th</sup> May 2000. This matter concerns, more particularly, certain provisions of the Minerals (Prospecting and Mining) Act, Act No. 33 of 1992 (the Minerals Act). As the rule <em>nisi</em>, which was issued on this occasion, closely followed the prayers set out in the Notice of Motion, it is only necessary to set out such rule ordered by the Court, namely:</p> <p>  </p> <p> “1. That a rule <em>nisi</em> be issued calling upon the Respondents to show cause, if any, why the following order should not be made on Friday 2 June 2000:</p> <p>  </p> <p> 1.1 That First Respondent be interdicted and restrained from interfering with the due processes of law, and more specifically from giving any ‘instructions’ to Third Respondent which:</p> <p>  </p> <ol><li> <p> would have the effect of interfering with any of the Applicants’ right and entitlement to have any dispute(s) between such Applicants and any of the Respondents adjudicated upon in terms of the due processes of law;</p> </li> </ol><p>  </p> <ol start="2"><li> <p> would have the effect of interfering with the Applicants’ constitutional right and entitlement to fair administrative justice, as enshrined in clause 18 of the Constitution of the Republic of Namibia</p> </li> </ol><p>  </p> <p> 1.2 Declaring:</p> <p>  </p> <ol><li> <p> the provisions of Part XV of the Minerals (Prospecting and Mining) Act, No 33 of 1992 to be <em> ultra vires</em> the provisions of clause 16(2) of the Constitution of the Republic of Namibia, and null and void an of no effect:</p> </li> </ol><p>  </p> <ol start="2"><li> <p> that Third Respondent has, for the above reasons, no rights and/or <em>locus standi</em> in the proceedings before the Second Respondent purportedly in terms of Part XV of the Minerals Act;</p> </li> </ol><p>  </p> <p>  </p> <ol start="3"><li> <p> that the convening and constitution of Second Respondent are declared to be nullities and of no force and effect;</p> </li> </ol><p>  </p> <p> 1.3 Declaring the purported renewal(s) by Second Respondent of Exclusive Prospecting Licence (“EPL 2101”) to be null and void, and by reason thereof, declaring Third Respondent not to have any <em>locus standi </em>before Second Respondent in its application in terms of section 109 of the Minerals Act;</p> <p>  </p> <p> 1.4 Declaring the rights sought by Third Respondent to be an infringement of:</p> <p>  </p> <ol><li> <p> Seventh Applicant’s constitutional rights as entrenched by clauses 16(2) and 98(2)(b) of the Constitution of the Republic of Namibia; and/or</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Seventh Applicant’s rights as entrenched by section 11 of the Foreign Investment Act, no 27 of 1990; and/or</p> </li> </ol><p>  </p> <ol start="3"><li> <p> Seventh Applicant’s interacting rights in terms of both the above Statutes; and/or</p> </li> </ol><p>  </p> <ol start="4"><li> <p> The provisions of sections 52(1)(b)(i) and 52(1)(d)(i) of the Minerals Act;</p> </li> </ol><p>  </p> <p> and not capable of being granted to third Respondent in terms of any current authorizing legislative enactment or common law principle;</p> <p>  </p> <p> 1.5 Interdicting and restraining Second Respondent from exercising any purported competencies, rights and/or duties, or from performing any acts in terms of the powers conferred by Part XV of the Minerals Act;</p> <p>  </p> <p> 1.6 Declaring the Respondents, jointly an severally, to be liable to pay Applicants’ costs;</p> <p>  </p> <p> 1.7 Granting to Applicants such further and/or alternative relief as this Honourable Court deems fit.</p> <p>  </p> <p> 2. That the rule <em>nisi</em> contained in paragraphs 1.1 operate as an interim interdict with immediate effect.</p> <p>  </p> <p> 3. The costs of these proceedings are to stand over for argument and determination on the return date.”</p> <p>  </p> <p>  </p> <p>  </p> <p> The only significant difference between the interim order granted and the prayers in the Notice of Motion was the fact that the Court did not order that prayer 2.5 (Order 1.5) should also operate as an interim interdict. Why this was so is of no relevance to the outcome of this case.</p> <p>  </p> <p> The Appellants were represented by Mr. Barnard. Mr. Chaskalson represented the first and second respondents whereas Mr. Smuts represented those respondents regarding the costs of the postponement of 3 April 2003. The third respondent was represented by Mr. Gauntlett assisted by Mr. Tötemeyer.</p> <p>  </p> <p> At the outset various matters ancillary to the appeal such as applications for condonation etc. were outstanding and opposed. However we were informed by Counsel that these issues were no longer contested. Because of the importance of the case the Court granted condonation where necessary and the matter proceeded on the merits of the appeal.</p> <p>  </p> <p> The application was supported by various affidavits. The main affidavit was made by the legal practitioner of the appellants who, in his affidavit, also dealt with the background to the application. It seems that an Exclusive Prospecting Licence with number 2101 (EPL 2101) was granted to a company with the name of Leotemp. Leotemp in turn transferred its rights to the third respondent. This happened on 25 June 1997. Thereafter the licence was again renewed until 25<sup>th</sup> April 2000. It is alleged that this renewal took place without any notice to the landowner and it is alleged that the <em>audi alteram partem</em>-rule was not complied with. The concession area, known as “block 9”, is situated on the Aussenkehr farm.</p> <p>  </p> <p> The farm Aussenkehr is extremely suitable for the growing and marketing of grapes and all of the applicants are in some way or another involved in this industry or represents workers so involved. It is further alleged that up to March 1998 prospecting was done by the third respondent in terms of a “surface owners’ agreement” as required by the Minerals Act. It is alleged that in terms of this agreement the owner expressed its intention to expand its farming operations and to that extent demarcated certain areas for such further expansion. The prospector undertook to use its best endeavours to prospect all such areas as soon as possible in order that these areas would become available for further grape cultivation.</p> <p>  </p> <p> This, however, did not happen. Instead it became clear that third respondent intended to excavate 4 pits of which pits 3 and 4 were situated within the area demarcated for further grape cultivation. Pits 1 and 2 would effectively fall within an area designated for the development of a township for the workers of Aussenkehr. In fact Pit 1 would be situated in an already existing portion of the informal settlement, housing some of the inhabitants of the village. Hence the application for the relief set out in paragraph 1.4 of the order.</p> <p>  </p> <p> The result of this was that when the “surface owners’” agreement expired in 1998 the Sixth appellant was not without more prepared to enter into a new agreement covering the renewal of EPL 2101. Attempts were made to solve the impasse but when this was unsuccessful, third respondent invoked the provisions of section 52(3) of the Minerals Act by an application to the second respondent to have the dispute resolved in terms of the provisions of section 110 (Part XV) of the Minerals Act. Third respondent thereupon launched an application to second respondent in terms of section 109(1) of the Minerals Act. The outcome of this application was in favour of the third respondent but was later, by agreement between the parties, set aside by the High Court because the Commission was, at one stage during the proceedings, not properly constituted. A fresh application was thereafter launched by the third respondent. It is this application that forms the subject matter for the relief claimed and set out in paragraph 1.5 of the interim order.</p> <p>  </p> <p> It was further alleged by the applicant that the activities by the third respondent were a breach of the applicant’s constitutional rights in terms of Articles 16 and 98(2)(b) of the Constitution and the applicant consequently asked the Court to declare Part XV of the Minerals Act, which sanctions such activities, to be <em>ultra vires</em> the provisions of the Constitution.</p> <p>  </p> <p> One Kennedy Ndilipunye Hamutenya, the Director of Mines in the Ministry of Mines and Energy, deposed to an affidavit on behalf of the first respondent. This deponent set out some of the history in regard to the viability of finding diamonds on Aussenkehr. In May 1996 two diamonds, totaling 0.95 carats, were found in Block 9. Hamutenya further confirmed the history of EPL 2101, as set out by the sixth appellant, and confirmed the renewal thereof in 1998. He also challenged the sixth appellant to state whether he was, at the time, aware of the application for renewal of the licence, and if so, why he did not seek an opportunity to make representations to the Minister, or protest the latter’s failure to give it an opportunity to be heard. Hamutenya denied that the Minister was under any obligation to hear the sixth appellant on the application for renewal of the licence and further stated that the issue was moot because the period of the renewal had already expired.</p> <p>  </p> <p> Hamutenya also denied the allegations set out in paragraph 12.9 of the founding affidavit and denied that at any stage a village or town existed in the designated areas where pits 1 and 2 were supposed to be dug. He further submitted that this issue was in any event not properly before the Court as it was an issue which was in the first instance one for the second respondent to decide in the context of the third respondent’s application in terms of section 109 of the Minerals Act.</p> <p>  </p> <p> The deponent also dealt with the sixth appellant’s allegations that, what the third respondent now intended to do, amounted to mining operations and he assured the appellants that the Ministry would not allow breaches of the provisions of the Minerals Act. Hamutenya said that the Ministry’s offer to arbitrate the dispute between the sixth appellant and the third respondent was a <em>bona fide</em> attempt to provide the parties with a speedier consensual resolution than a formal hearing before the second respondent.</p> <p>  </p> <p> In regard to the unconstitutionality of Chapter XV of the Minerals Act the deponent stated that on a proper interpretation of Article 16 of the Constitution the provisions of the Chapter did not limit property rights. In the alternative it was stated that the Chapter constituted a reasonable legislative scheme for the regulation of the rights of mineral licence holders and did therefore not violate the Constitution. It was alleged that Article 16 had to be interpreted to allow reasonable regulation of property rights. Further in the alternative it was alleged that if Chapter XV went beyond reasonable regulation and authorizes expropriation then expropriation was accompanied by just compensation and accordingly permissible under Article 16(2) of the Constitution.</p> <p>  </p> <p> In regard to annexure “ND 20” the deponent admitted that the letter was sent by the Permanent Secretary of the first respondent and stated that there was no legal basis for the last sentence of the letter. He furthermore undertook that the first respondent would not bypass any procedures required by the Minerals Act in relation to the dispute between the parties. This undertaking affected the interdict applied for by the appellants against the first respondent. This undertaking came to the knowledge of the appellants on 5<sup>th</sup> June 2000.</p> <p>  </p> <p> Second respondent’s answering affidavit was deposed to by its chairman Mr. Dirk Hendrik Conradie. The deponent stated that the second respondent opposed the relief sought in prayer 2.4(d) on the basis that it was sought prematurely and that the issues relating to this relief should actually be the subject of the second respondent’s hearing in terms of section 109 of the Minerals Act. In all other respects the second respondent abided by the decision of the Court.</p> <p>  </p> <p> The answering affidavit by the third respondent was deposed to by one Peter Walker, at the time, a director of the third respondent. He set out that an amount of some N$ 7 million had already been spent in exploration activities and that a further N$ 30 million would be spent on bulk sampling. If the first phase indicated viability a further N$ 15 million would be expended. He further stated that the reason why they agreed to have the ruling of the second respondent set aside was that it was established that for part of the hearing one of the members of the Commission was absent during the proceedings which fatally affected the outcome of the hearing. This deponent denied most of the allegations contained in the founding affidavit and also launched a counter application against the sixth appellant in which it was claimed that the Court declared that the written agreement, Annexure “15”, was a valid and binding surface owners’ agreement between the third respondent and the sixth appellant.</p> <p>  </p> <p> This counterclaim was later abandoned by the third respondent but not after some unnecessary time and energy was spent on it.</p> <p>  </p> <p> The replying affidavit of the legal practitioner of the appellants was described by him as provisional and preliminary due to the fact that some of the respondents did not comply with the time frame, laid down by the Court, in which they were to file their answering affidavits.</p> <p>  </p> <p> After the initial hearing, during which the rule <em>nisi</em> was issued, the matter was postponed and the respondents put on terms to deliver their answering affidavits on or before 19<sup>th</sup> of May and the appellants were ordered to reply on or before the 26<sup>th</sup> May. In terms of the Court order the matter was due for hearing on 2<sup>nd</sup> June 2000. Although the third respondent filed its answering affidavit and counterclaim on time the first and second respondents only did so on the 25<sup>th</sup> of May. This notwithstanding the third respondent insisted that its counterclaim be heard on 2<sup>nd</sup> of June. The background to all this was no longer relevant, however the applicant was able to file a long affidavit by one Dusan Vasiljevic, the Managing Director of the sixth appellant, as well as an affidavit by the legal practitioner of the applicants in which they dealt fully with the third respondent’s counterclaim.</p> <p>  </p> <p> Notwithstanding the insistence of the third respondent that the matter be heard on 2<sup>nd</sup> June the matter was not ripe for hearing and the parties agreed to a postponement and were placed on terms and given extended dates. These dates could also not be complied with and third respondent, in turn, launched an application for postponement and applied that its counterclaim be heard together with the main application. This application was opposed by the applicants. In the end the application was successful but was an example of the non-cooperation of the parties towards each other and was one of many side skirmishes which contributed to swelling the record to some 20 volumes. In the process the parties did not mince words and accusations of vexatious and other dishonest and fraudulent behaviour became part and parcel of the content of the various affidavits.</p> <p>  </p> <p> In an affidavit, which according to the legal practitioner of the appellants, was to replace his “preliminary and provisional” replying affidavit previously filed, and which only corrected some spelling mistakes, it was now conceded that one of the applicants, which was previously styled as the fifth applicant, namely Aussenkehr Small Business Association, had no <em>locus standi </em>to pursue the relief sought in the main application. However, according to the third respondent the affidavit went much further than correcting mistakes in the previous affidavit. This replying affidavit joined issue on most of the allegations contained in the affidavits of the respondents and also foresaw the filing of a further affidavit by an expert in support of the appellants’ case.</p> <p>  </p> <p> In a further affidavit Walker persisted that, as was set out in the counterclaim of the third respondent, the parties had reached a valid and binding agreement concerning the exercise of the right to prospect as set out in the claim.. This was supported by the legal representative of the third respondent, Ellis. In another affidavit dated 2<sup>nd</sup> August 2000 a Rule 14 application was attached in terms of which Ellis challenged the standing of a number of the appellants to bring the application. This affidavit was followed by a further application by Ellis requesting the Court to admit his affidavit of 2<sup>nd</sup> August 2000 with annexures. Notice was also given by the third respondent of an application to strike out matters contained in the founding and replying affidavits of the sixth appellant.</p> <p>  </p> <p> After leave was granted by the Court, the sixth appellant was allowed to file further affidavits in answer to the replying affidavits of the third respondent. The appellant was however placed on terms and because the affidavit was not filed within the dates set by the Court the sixth appellant also had to apply for condonation. This affidavit also dealt mainly with allegations relevant to the counter application which, as indicated above, were later not proceeded with. An affidavit was also filed by the legal practitioner of the appellants in answer to the challenge to the <em>locus standi </em>of certain of the appellants.</p> <p>  </p> <p> Another issue which drew fire from both sides was the Walmsley report, an environmental evaluation of the activities by the third respondent and which was obtained by the third respondent. When the appellants used this report to show the effect “trial mining” would have on the environment, objection was taken by the third respondent on the basis that the report was hearsay evidence and application was made to strike it out. This was met by a long affidavit deposed to by the legal practitioner of the appellants setting out why the report should be allowed.</p> <p>  </p> <p> Again by Notice of Motion dated 12<sup>th</sup> October 2000, sixth appellant applied that the supporting affidavit to the application be admitted as a further and supplementary replying affidavit on behalf of the appellants. The purpose of this was to support the founding affidavit of Ndauendapo in which it was alleged that the third respondent was only a shell company and that all the indications were that there were no viable diamond finds to be made on Aussenkehr. It was further stated that what the third respondent intended to do could no longer be described as prospecting and in fact amounted to mining which it was not allowed to do in terms of its licence. In order to support the allegations, Ndauendapo attached a previous application for security of costs and annexures. This new material comprised, together with annexures, some 159 typewritten pages.</p> <p>  </p> <p> On 21<sup>st</sup> February 2001 an inspection <em>in loco</em> was held on the farm. I will deal with this more fully at a later stage when and if it becomes necessary. However, the appellants, through their legal representative, utilized the opportunity to file a further affidavit “to enlarge upon what has been revealed by the Respondents and to set up an additional ground for relief.” To this extent the affidavit of one Volkmann, a professional land surveyor, was filed with the Court. The purpose of this exercise was for Volkmann to demonstrate by means of a map “all activities to be exercised by Northbank Diamonds in terms of their prospecting license, from any existing ‘spring, well, borehole, reservoir, dam, dippingtank, waterworks, perennial stream or pan, artificially constructed watercourse, kraal, building or any structure of whatever nature.’ Those being the structures envisaged by section 52(1)(d)(ii) of the Minerals Act. I will deal more fully with this affidavit if and when it becomes necessary.</p> <p>  </p> <p> This maneuver was met by the third respondent with strong opposition and an application was launched, in terms of Rule 30, to set aside the affidavits by Ndauendapo and Volkmann. The third respondent, through Walker, filed a long and voluminous affidavit containing <em>inter alia </em>extracts from the argument and evidence in proceedings which took place previously before the second respondent and what was said during the inspection <em>in loco</em>. This application was also a reply to the supplementary replying affidavit of Ndauendapo. A steady stream of further affidavits kept coming, seemingly by agreement between the parties and with the approval of the Court. In his affidavit Walker availed himself of strong language and accused Ndauendapo of advancing “a false, baseless and ever changing <em>mala fide </em>case.”</p> <p>  </p> <p> The attack of Walker was strongly objected to by the legal practitioner of the appellants who seemed to hold the legal representatives of the third respondent responsible for the attack and threatened them with legal action. On the 29<sup>th</sup> June yet a further affidavit was filed by Ndauendapo which dealt, <em>inter alia</em>, also with issues pertaining to Walker’s affidavit which the deponent did not deal with in his previous affidavits.</p> <p>  </p> <p> I have given a short overview of the chronological development of this case and one cannot help thinking that the Court <em>a quo</em> should have kept a firmer hand on the reigns and should not have allowed the parties to roam almost at will. The matter became out of control when the applicants deponent, Ndauendapo, had to distinguish between his provisional and preliminary and additional and supplementary replying affidavits. When further affidavits were filed they were just called “affidavit” and the reader was warned not to be misled by the description of the document. Affidavits on both sides did not hesitate to accuse deponents on the other side of being <em>mala fide</em> or dishonest or of abusing the process of the Court. An extreme example of this was the replying affidavit of Walker. For the most part this affidavit as well as Ndauendapo’s reply thereto had no relevance to the issues and the relief claimed. Most of this affidavit was then also struck out. Affidavits were repetitive and sometimes even contain legal argument with reference to decided cases. Another ludicrous situation arose when the third respondent insisted on having its counterclaim adjudicated separately from the main application. The counter-claim was then postponed to an earlier date. Thereafter the third respondent had second thoughts and decided to have the counterclaim heard together with the main claim but was then met with opposition with the result that the third respondent then had to bring a formal application for a postponement. All this for nothing because the counterclaim was withdrawn in the end but this illustrated the attitude of the parties</p> <p>  </p> <p> One factor which caused the note of enmity which soon crept into the proceedings was in my opinion the fact that all the main affidavits of the appellants were deposed by their legal practitioner with confirming affidavits by the clients. This Court has on a previous occasion warned against this practice and there is no doubt in my mind that this practice must be discouraged, if need be, by appropriate orders for costs. (See in this regard <em>Vaatz and Another v Klotzsch and Others, unreported judgment of this Court, delivered on 11 October 2002. )</em> In the <em>Vaatz</em> case<em> </em>this Court also warned litigants not to make unfounded and unnecessary accusations of dishonest conduct against their opponents. The Court also warned legal practitioners not to allow their clients to act in this way. However allegations of some or other reprehensible conduct on the part of the other party appeared almost in every affidavit and, as previously stated, the affidavit of Walker went far beyond what is acceptable. It seems to me that the parties are equally to blame for this situation. Because of the conclusion to which I have come in this appeal I do not intend to make any special orders in this regard.</p> <p>  </p> <p> When the matter was argued Counsel on all sides were, notwithstanding the voluminous documentation and evidence placed before the Court, able to crystallize the main issues and to confine their arguments to those issues. Apart from an appeal against certain costs orders and the question of who was responsible for the costs of the postponement of the appeal in April 2003, the appeal turned on three main issues, namely the constitutionality of Part XV of the Minerals Act, the review application in regard to the renewal of EPL 2101 in 1998 and the application based on the provisions of section 52 of the same Act.</p> <p>  </p> <p> <strong>A. <u>CONSTITUTIONALITY OF PART XV OF THE MINES AND MINERALS</u></strong><u> <strong>ACT</strong></u></p> <p>  </p> <p> The heading of Part XV of the Act reads ‘Ancillary Rights’. In terms of sec. 108 a Minerals Ancillary Rights Commission (the Commission) is established consisting of a chairperson and two members It furthermore applies the provisions of the Commissions Act, Act No. 8 of 1947, to the proceedings of the Commission. Sec. 109 is the <em>raison d’etre</em> of the Commission. It states that where it is reasonably necessary for the holder of a non-exclusive prospecting licence, a mineral licence or a mining claim to obtain a right:</p> <p>  </p> <p> “(a) to enter upon land in order to carry on operations authorized by such licence or mining claim on such land;</p> <p>  </p> <p> (b) to erect or construct accessory works on any land for purposes of such operations;</p> <p>  </p> <p> (c) to obtain a supply of water or any other substance in connection with such operations;</p> <p>  </p> <p> (d) to dispose of water or any other substance obtained during such operations;</p> <p>  </p> <p> (e) to do anything else in order to exercise any right conferred upon him or her by such licence or mining claim;”</p> <p>  </p> <p>  </p> <p> and such holder is prevented from carrying on such operations by, e.g. the owner of the land or any person competent to grant such right, then the holder of the licence can apply to the Commission to grant him such right. The section further provides for the procedure to be followed, the notices to be given to the owner or other interested party or parties and call upon them to make representations in opposition to such application. Sec. 110 provides for a hearing of the application and further states that the interested party or parties shall be heard either personally or through a legal representative and further provides for the cross-examination of any witnesses. If the Commission is on reasonable grounds satisfied that it is reasonably necessary for such holder to obtain such a right it may grant the right subject to such terms and conditions and for such period as the Commission may think fit. Under certain circumstances the chairperson may also, as an interim measure, and before a hearing takes place, grant to the holder such right which shall lapse on the date that the application, made in terms of sub-sec. (1), is considered and decided upon by the Commission. Sec. 112 empowers the Commission to determine an amount for compensation in regard to any right granted by it which shall be payable before the exercise thereof if security therefore has not been given. Sec. 113 gives to any person aggrieved by an order of the Commission a right of appeal to the High Court of Namibia.</p> <p>  </p> <p> The Court was asked to draw certain inferences from the provisions of sec. 107 of Part XV and it is therefore necessary to set out this provision in full, namely –</p> <p>  </p> <p> “107. The provisions of this Part, in so far as they provide for a limitation on the fundamental rights contemplated in subarticle (1) of Article 16 of the Namibian Constitution in order to authorize, subject to an obligation to pay just compensation, the holder of a non-exclusive prospecting licence, a mineral licence or a mining claim to enter upon any land of any person for purposes of carrying on operations authorized by such licence, are enacted upon the authority conferred by sub article (2) of that Article.”</p> <p>  </p> <p>  </p> <p> Article 16 of the Constitution, to which reference is made in sec. 107 of the Act, is part of the Bill of Rights contained in the Namibian Constitution and forms the basis of the attack launched by the appellants on the constitutionality of Part XV of the Minerals Act. This Article provides as follows:</p> <p>  </p> <p> “Article 16 Property</p> <p> (1) All persons shall have the right in any part of Namibia to acquire, own and dispose of all forms of immovable and movable property individually or in association with others and to bequeath their property to their heirs or legatees: provided that Parliament may by legislation prohibit or regulate as it deems expedient the right to acquire property by persons who are not Namibian citizens.</p> <p>  </p> <p> (2) The State or a competent body or organ authorized by law may expropriate property in the public interest subject to the payment of just compensation, in accordance with requirements and procedures to be determined by Act of Parliament.”</p> <p>  </p> <p>  </p> <p>  </p> <p> Various other articles of the Constitution are also relevant to the question concerning constitutionality. These are articles 131, 22 and 25(1). These articles provide as follows:</p> <p>  </p> <p> “Article 131 Entrenchment of Fundamental Rights and Freedoms:</p> <p>  </p> <p> No repeal or amendment of any of the provisions of Chapter 3 hereof, in so far as such repeal or amendment diminishes or detracts from the fundamental rights and freedoms contained and defined in that Chapter, shall be permissible under this Constitution, and no such purported repeal or amendment shall be valid or have any force or effect.”</p> <p>  </p> <p> “Article 22 Limitation upon Fundamental Rights and Freedoms</p> <p>  </p> <p> Whenever or wherever in terms of this Constitution the limitation of any fundamental rights or freedoms contemplated by this Chapter is authorized, any law providing for such limitation shall:</p> <p>  </p> <ol><li> <p> be of general application, shall not negate the essential content thereof, and shall not be aimed at a particular individual;</p> </li> <li> <p> specify the ascertainable extent of such limitation and identify the Article or Articles hereof on which authority to enact such limitation is claimed to rest.”</p> </li> </ol><p>  </p> <p>  </p> <p> “Article 25 Enforcement of Fundamental Rights and Freedoms</p> <p>  </p> <p> (1) Save in so far as it may be authorized to do so by this Constitution, Parliament or any subordinate legislative authority shall not make any law, and the Executive and the agencies of Government shall not take any action which abolishes or abridges the fundamental rights and freedoms conferred by this Chapter, an any law or action in contravention thereof shall to the extent of the contravention be invalid provided that:…”</p> <p>  </p> <p>  </p> <p>  </p> <p> The above provisions of the Constitution stipulates, firstly that the Rights and Freedoms, set out in Chapter 3, cannot be repealed and can only be amended in so far as such amendment does not diminish or detract anything from the Rights and Freedoms so set out in that Chapter. Secondly the limitation of the Rights is only permissible where this is authorized by the Constitution and then only to the extent set out in Article 22. Thirdly any Act of Parliament which abolishes or abridges any of the Rights or Freedoms shall to that extent be invalid.</p> <p>  </p> <p> On behalf of the appellants it was submitted by Mr. Barnard that there could not be any question that the provisions of Part XV of the Act limits the property rights of a landowner and as the Minerals Act is an Act of Parliament it is subject to the above limitations. Referring to Article 22 Counsel submitted that the Legislator was aware of the effect of the provisions of Part XV and in order to find some authorization for the limitation of Article 16 it enacted the provisions of sec. 107 of the Minerals Act. Counsel however submitted that Part XV was not saved by sec. 107 as Article 16(2) deals with expropriation and sanctions the expropriation of land under certain circumstances. Part XV, so it was submitted, falls short of expropriation and only limits the use and enjoyment of his property by a landowner. Consequently Part XV, which limits the property rights of a Landowner without there being any authorization for such limitation, results in the provisions of Part XV being unconstitutional.</p> <p>  </p> <p> Counsel further submitted that the argument by the respondents that Article 16 only entrenched and safeguarded the framework within which property could be acquired, can be owned and disposed of and nothing more, was flawed. Counsel submitted that Article 16 safeguarded the component rights of ownership and not only certain of those rights as argued by the respondents. Counsel further submitted that even if Part XV of the Minerals Act was a reasonable legislative act then the provisions thereof were not saved because, unlike the South African Constitution, the Namibian Constitution did not contain a general limitation clause based on the reasonableness of the legislation. (See sec. 36(1) of the South African Constitution, Act 108 of 1996).</p> <p>  </p> <p> Mr. Chaskalson, on behalf of the 1<sup>st</sup> and 2<sup>nd </sup> respondents , submitted that Article 16 had to be interpreted in harmony with Article 100 of the Constitution. In this regard it was firstly argued by Counsel that, seen in this way, the encroachment on the interests of a surface owner by the owner of the mineral rights did not impact on property within the contemplation of Article 16. Alternatively, and if the Court should find that the encroachment did impact on the property of the surface owner, then Counsel submitted that Article 16(2) expressly permitted the appropriation of property by a competent body authorized to act in terms of the law and on payment of just compensation. Article 16 tacitly permits the reasonable regulation of property rights in the public interest. To that extent the Article authorizes interference with property rights which falls short of expropriation and therefore provides for a reasonable regulation of competing interests of surface owner and mineral rights holder. Counsel confirmed that ownership protected by Article 16(1) was not limited to the instances mentioned in the Article or to some “sticks in the bundle” of property rights. However the Article did not exclude reasonable regulation by the State in regard to property rights.</p> <p>  </p> <p> Mr. Chaskalson further pointed out that on the argument of Mr. Barnard an intransigent surface owner would be able to render the right of a holder of mineral rights nugatory. If Part XV was unconstitutional, as submitted by Mr. Barnard, then there was no means whereby a holder of mineral rights might, e.g. enter on the property to exercise his rights, if permission to enter on the property was not granted by the surface owner. That meant that the right, which was regarded as property, and was protected similarly by Article 16, was unprotected. Mr. Chaskalson submitted that the contentions by the appellants were absurd and would bring about a result not intended by the Constitution.</p> <p>  </p> <p> Mr. Gauntlett associated himself with the argument of Mr. Chaskalson for the first respondent. He pointed out that the appellants sought three declaratory orders and he referred the Court to the applicable law. Referring to the argument by Counsel for the appellants Mr. Gauntlett said that what Counsel was contending for was that Article 16 established an absolute right of surface ownership incapable of regulation. What was protected by the article was, on the interpretations given by this Court in regard to purposive interpretation of the Constitution, the full ownership in property. Mr. Gauntlett pointed out that the history of Namibia showed that mineral rights always vested in the State which was then free to licence mining operations. Reading Articles 16, 100 and 140 together, what the Constitution is providing for in its scheme was that the existing dispensation on mining laws, as one form of property rights, was carried through. The right to mine carries with it the ancillary rights set out in Part XV of the Minerals Act and is, if sensibly interpreted, intended to alleviate the position of the surface landowner.</p> <p>  </p> <p> The interpretation of Article 16 of the Constitution read with Articles 22 and 131 leads, according to Counsel for the appellants, to the inevitable conclusion that the ownership in property, be it movable or immovable, is not capable of regulation where such regulation abolishes or abridges any of the rights comprising ownership in property. The only limitation on ownership provided for in Article 16 is expropriation by the State, or a body set up in terms of the law, for public purposes and against payment of just compensation. This, so it was submitted by Counsel, was due to an oversight by the founding fathers when they drafted the Constitution. On the one hand Mr. Barnard submitted that the Constitution was immutable and that Part XV of the Mines and Minerals Act infringed the rights of a landowner and was therefore unconstitutional. On the other hand the enormity of such a submission forced Counsel to further submit that the Constitution was not cut in stone and such an obvious <em>lacuna </em>would be capable of correction by the Legislature, although it was conceded that any subsequent drafting to provide for regulation would itself diminish or abridge Article 16.</p> <p>  </p> <p> Certain issues crystallized during argument and became common cause. One such issue concerned the content of ownership in property. It was submitted by Mr. Barnard that the protection given by Article 16 extended over all rights included in property ownership and not only in some of the rights. During argument both Counsel on behalf of the respondents explained their stance and only qualified the protection so granted to ownership being subject to reasonable regulation. I agree that the protection granted by the Article encompasses the totality of the rights in ownership of property. This Article, being part of Chapter III of the Constitution, must be interpreted in a purposive and liberal way so as to accord to subjects the full measure of the rights inherent in ownership of property. (See in this regard <em>Minister of Defence v Mwandinghi, </em>1993 NR 63 SC).</p> <p>  </p> <p> Another issue on which there was unanimity between the parties was the issue whether an exclusive prospecting licence was property. In my opinion the parties correctly agreed that such licence was property in the hands of the holder thereof. (See in this regard <em>Minister of Defence v Mwandinghi, supra,</em> p. 75.)</p> <p>  </p> <p> Thirdly the parties were <em>ad idem </em>that Article 100 of the Constitution vested mineral rights, for so far as they were not privately owned, in the State. In regard to Namibia mineral rights vested in the State since Colonial times. (See in this regard Imperial Mining Ordinance for German South West Africa, 8<sup>th</sup> August 1905 and Proc. 21 of 1919, Proc. 4 of 1940, Ord. 26 of 1954, Ord. 20 of 1968 and presently Act 33 of 1992).</p> <p>  </p> <p> I agree with Counsel, on behalf of the Respondents, that the question whether Part XV of the Minerals Act is constitutional must be determined on the provisions of the various Articles of the Constitution read with Article 100. The source for the enactment of the Minerals Act is to be found in Article 100 of the Constitution itself which vests those rights in the State. Constitutionally these rights never formed part of ownership in landed property and can therefore not be seen as <em>ex post facto</em> limiting the right of ownership of a landowner in regard of which the provisions of Article 22 of the Constitution must apply. The Minerals Act regulates the granting and the exercising of those rights and the relationship between the State and any holder on which such rights are conferred in terms of the Minerals Act. Because of a possible conflict between the exercise of such rights and the rights of the owner of landed property, the Act provides for machinery by means of which it attempts to resolve any dispute by balancing the competing rights and thereby relieving the tension so created. It is in this regard that Part XV of the Act, and to a certain extent also sections 51 and 52, play a role.</p> <p>  </p> <p> The contention by the appellants’ Counsel that Part XV of the Minerals Act is unconstitutional carries in its wake the logical result that all and any regulation in regard to property, in so far as such regulation may abridge, in the least, one or any of the “bundle” of rights, of which ownership in property consists, such regulation will be invalid as it conflicts with the provisions of Article 16 of the Constitution. This was conceded by Counsel for the appellants. According to Counsel no provision was made for regulating of property in this regard. This caused Mr. Gauntlett to remark that whenever the State wanted to impose some or other regulation in regard to property, e.g. to regulate the possession of arms and ammunition, they would not be able to do so except to expropriate all arms and ammunition.</p> <p>  </p> <p> Mr. Gauntlett, on the other hand, submitted that it was not the intention of the founding fathers to change the property regime in Namibia. The purpose of Article 16 was to protect the right of individuals and body corporates to acquire and possess property and did not intend this to change on the advent of Independence. Both Counsel for the respondents further pointed out that an interpretation of Article 16 as an absolute and rigid provision, incapable of accommodating reasonable regulation of property, was untenable. Counsel also pointed out that, because of the provisions of Article 131, there was no way in which the situation could be corrected if the interpretation of Mr. Barnard was correct.</p> <p>  </p> <p> There is no doubt in my mind that if Mr. Barnard is correct we are facing a major crisis. His submission that the failure to provide for regulation, as far as property was concerned, as a mere oversight which could always be amended is all but reassuring, more particularly bearing in mind that such a correction itself would be, on his argument, an abridging of the provisions of Article 16 and would thus be in conflict with Article 131. No authority was cited by him in support of the proposition that amendment would be possible.</p> <p>  </p> <p> The owner of property has the right to possess, protect, use and to enjoy his property. This is inherent in the right to own property. It is however in the enjoyment and use of property that an owner may come into conflict with the rights and interests of others and it is in this sphere that regulation in regard to property is mostly needed and in many instances absolutely necessary. Such regulation may prohibit the use of the property in some specific way or limit one or other individual right without thereby confiscating the property and without thereby obliging the State to pay compensation. There are many such examples where, to a greater or lesser degree, the use or enjoyment of property, be it movable or immovable, is regulated by legislation and which would, on the argument of Mr. Barnard, constitute a limitation on the right of ownership which will then render such legislation unconstitutional and can be challenged by anyone against whom such legislation is enforced.</p> <p>  </p> <p> A search through the legislative publications of Namibia, as well as legislation taken over from the previous dispensation, support the above statement. Examples of these are, Ordinance 19 of 1957 controlling the eradication of weeds on land; Act 59 of 1968, controlling the sale of agricultural products; Act 3 of 1973, controlling agricultural pests; Act 12 of 1981, controlling the meat industry and Act 24 of 1995 making it compulsory to brand cattle; Act 13 of 1956, controlling animal diseases; Act 76 of 1969, dealing with soil erosion and Act 70 of 1970, prohibiting the subdivision of land under certain circumstances. All the above legislation is aimed at the use of land and agricultural products.</p> <p>  </p> <p> Examples of control over other property are Act 6 0f 1998, the sale of alcohol; Act 7 of 1996, the control of arms and ammunition; Ord. 30 of 1967 and Act 22 of 1999, the control over the use of motor vehicles; Act 25 of 1964, control over the price of certain goods and Act 54 of 1956, control over the use of water under certain circumstances.</p> <p>  </p> <p> The above are only examples of the control by the State over the property of its subjects and inhabitants in Namibia. It is in my opinion inconceivable that the founding fathers of our Constitution were unaware of the vast body of legislation regulating the use and exercise of rights applicable to ownership or that it was their intention to do away with such regulation. Without the right to such control it seems to me that it would be impossible for the Legislature to fulfil its function to make laws for the peace, order and good government of the country in the best interest of the people of Namibia. (Art. 63(1) of the Constitution.) It therefore seems to me that, like the right to equality before the law (Art. 10(1) of the Constitution), the right to ownership in property is not absolute but is subject to certain constraints which, in order to be constitutional, must comply with certain requirements.</p> <p>  </p> <p> In <u>Constitutional Law of India</u> by H.M. Seervai, 3<sup>rd</sup> Edition, Vol. II, pa. 14.24, the Author, discussing Arts. 19(1)(f), and 31, before these articles were amended, of the Indian Constitution, dealing with the right of citizens to acquire, hold and dispose of property both movable and immovable, pointed out that the sovereignty of the State involves three elements, namely the power to tax, “police power” and “eminent domain”. The author further stated that ‘police power’ was defined as “the inherent power of a government to exercise reasonable control over person and property within its jurisdiction in the interest of general security, health, safety, morals and welfare except where legally prohibited (as by constitutional provision).” The accepted definition for ’eminent domain’ is “the power of the sovereign to take property for public use without the owner’s consent upon making just compensation”. The distinction between an exercise of the State’s police power and its power of eminent domain is familiar to South African expropriation law. (See in this regard: Davis, Cheadle and Haysom: <u>Fundamental Rights in the Constitution: </u> p 243.)</p> <p>  </p> <p> It seems to me that in so far as a comparison can be drawn this distinction between the State’s police power and its power of eminent domain is to a certain extent inspirational for Art. 16 of our Constitution and that Art. 16(1) can be compared to the State’s police powers and Art. 16(2) its powers of eminent domain. If it is then accepted, as I do, that Article 16 protects ownership in property subject to its constraints as they existed prior to Independence and that Article 16 was not meant to introduce a new format free from any constraints then, on the strength of what is stated above, and bearing in mind the sentiments and values expressed in our Constitution, it seems to me that legislative constraints placed on the ownership of property which are reasonable, which are in the public interest and for a legitimate object, would be constitutional. To this may be added that, bearing in mind the provisions of the Constitution, it follows in my opinion that legislation which is arbitrary would not stand scrutiny by the Constitution.</p> <p>  </p> <p> To the extent set out above I agree with the submissions by Counsel for the respondents. This case, as far as I know, is the first concerning the interpretation of Article 16. I therefore do not want to imply that the requirements in the previous paragraph are a closed list and the final interpretation of the Article. It should in my opinion be allowed to develop as the need arises, if any.</p> <p>  </p> <p> This brings me to Part XV of the Minerals Act. In my opinion the constitutionality of this legislation can be approached on two grounds. Firstly, and as was pointed out previously, mineral rights vested in the State by virtue of Article 100 of the Constitution. As such the inroad into the property right of the landowner is created and sanctioned by the Constitution. In so far as the mineral rights may be transferred by the State into private ownership, it is, as property, also protected by Article 16 of the Constitution.</p> <p>  </p> <p> However, because of the origin of the right, being the Constitution itself, it cannot be said that it is the Minerals Act, or for that matter Part XV thereof, which abolishes or abridges, (See Article 25), the fundamental right of ownership protected under Article 16. The Minerals Act does no more than give effect and content to the right so vested by the Constitution and Part XV contains reasonable provisions for the balancing of this right <em>vis-à-vis</em> any other interests or rights, e.g. that of the landowner. Providing, as it does, for a proper hearing, the payment of compensation where necessary and control by the Courts of the land in regard to any order made by the Ancillary Rights Commission, there is no basis upon which the provisions of Part XV can be said to be unreasonable. I also do not understand Counsel for the Appellants submitting that the provisions are unreasonable.</p> <p>  </p> <p> Secondly, and bearing in mind the inherent power of the State over persons and property to exercise reasonable control, Part XV is enacted in the public interest and for a legitimate object and is a reasonable mechanism whereby similar contesting rights are balanced to ensure equal protection of those rights in terms of the Constitution. On this basis also it cannot be said that the provisions of Part XV of the Minerals Act are unconstitutional.</p> <p>  </p> <p> The interpretation of Counsel for the appellants will inevitably lead to the absurdity that it pre-supposes that any regulation in regard to ownership which controls to any extent one or other of the rights in ownership of property will be unconstitutional. In regard to the particular provisions of the Minerals Act the interpretation of Counsel is to the effect that a landowner could, <em>ad infinitum, </em>frustrate the rights of the holder of a mineral licence and that notwithstanding the fact that such right was property and was sanctioned by the Constitution itself. The owner, by refusing permission to a licence holder to enter upon his land, can effectively circumvent such right.</p> <p>  </p> <p> Reference was made to the provisions of sec. 107 of Part XV and it was submitted by Counsel for the appellants that the legislature itself was aware that the provisions of this Part of the Act would impact on the rights of ownership and that they therefore attempted to save the provisions by referring to Article 16(2) of the Constitution as authority for the abridgement of ownership rights protected by sec. 16(1). It was however submitted that Article 16(2) could not save the situation as it dealt with expropriation proper and did not cover the instance where only one or other of the rights inherent in ownership of land was diminished. However, on the reasoning set out above it seems to me, as was also submitted by Counsel for the respondents, that the Legislator was perhaps over-cautious in enacting sec. 107. As was further pointed out by Counsel for the respondents the possibility of an expropriation was always present and that it was thought prudent to include reference to Article 16(2) of the Constitution. In my opinion the inference Counsel for the appellants wanted us to draw from the inclusion of sec. 107 is not justified. In any event it is for the Court, and not the Legislator, to interpret the provisions of the Constitution and the Minerals Act.</p> <p>  </p> <p> I am, for the above reasons, of the opinion that the appeal cannot succeed on this ground.</p> <p>  </p> <p> B. <u>REVIEW OF THE RENEWAL OF THE LICENCE IN 1998</u></p> <p>  </p> <p> The second ground of appeal concerns the finding by the Court<em> a quo</em> that the review, brought by the appellants, was not within a reasonable time. The learned Judge further found that there were also no valid grounds on which the Court could relax the rule with the result that the Court dismissed the application for a review.</p> <p>  </p> <p> Because no specific time is prescribed for the institution of review proceedings, the Courts, as part of their inherent power to regulate their own procedure, have laid down that a review must be brought within a reasonable time. The requirement of a reasonable time is necessary in order to obviate possible prejudice to the other party and because it is in the interest of the administration of justice and the parties that finality should be reached in litigation. Where the point is raised that there has been unreasonable delay the Court must first determine whether the delay was unreasonable. This is a factual enquiry depending on the circumstances of each case. Once it is satisfied that the delay was unreasonable the Court must determine whether it should condone the delay. In this regard the Court exercises a discretion. Because the circumstances in each particular case may differ from the next case, what is, or what is not, regarded in other cases to be an unreasonable delay is not of much help, except to see perhaps what weight was given to certain factors. (See <em>Schoultz v Voorsitter, Personeel-Advieskomitee van die Munisipale Raad </em> <em>van George, en ‘n Ander, </em>1983 (4) SA 689(KPA); <em>Setsoskosane Busdiens (Edms) Bpk. v Voorsitter, Nasionale Vervoerkommissie, en ‘n Ander,</em> 1986 (2) SA 57(AD); <em>Radebe v Government of the Republic of South Africa and Others, </em>1995 (3) SA 787(NPD); <em>Mnisi v Chauke and Others; Chauke v Provincial Secretary, Transvaal, and Others, </em>1994 (4) SA 715(TPD); <em>Kruger v Transnamib Ltd (Air Namibia) and Others, </em>1996 NR 168(SC); and <em>Lion Match Co. Ltd v Paper Printing Wood &amp; Allied Workers Union and Others, </em>2001 (4) SA 149(SCA).)<em> </em></p> <p>  </p> <p> In the case of <em>Wolgroeiers Afslaers (Edms.) Bpk. v Munisipaliteit van Kaapstad,</em> 1978 (1) SA 13 (A.A.), the South African Appeal Court decided that prejudice to the other party was not a pre-requisite before an application can be dismissed on the ground of unreasonable delay. Prejudice is however a relevant consideration in such matters. It is further clear that the issue of unreasonable delay may also be raised <em>mero motu</em> by the Court. (See <em>Radebe’s case, supra, </em>798 G-H and <em>Disposable Medical Products (Pty) Ltd v Tender Board of Namibia and Others, </em>1997 NR 129(HC).)</p> <p>  </p> <p> The first factual finding to be made is the length of time since the applicant became aware of the renewal of the licence and when the review proceedings were launched. Mr. Barnard submitted that it was common cause that the appellant became aware of the renewal during August of 1998. As the present proceedings were instituted on the 2<sup>nd</sup> May 2000 it follows that the period it took the appellants to bring the application is three months short of two years. However Mr. Chaskalson is not in agreement with the appellant in regard to the length of time which it took to bring the proceedings. Counsel referred the Court to the affidavit of deponent Dusan Vasiljevic, on behalf of the sixth appellant, in which the history of negotiations concerning a further surface owner’s agreement for the renewal of the licence was set out. Attached to this affidavit, as annexure “DV1.1”, was a letter written by the deponent on behalf of the third respondent, Walker, addressed to the Permanent Secretary of Mines and Energy. According to the letter it was copied to Mr. H. Diekman, at that time the legal representative of the sixth appellant, as well as to Mr. Vaseljevic, the managing director of the sixth appellant. The fact that the letter was attached to an affidavit by Vaseljevic seems to me to confirm that the letter, or a copy thereof, reached its destination. This letter concerns the negotiations between the parties to attempt to reach a new surface owners’ agreement in the place of the old agreement which had expired in March 1998. That was shortly before the expiration of EPL 2101 on the 25<sup>th</sup> April 2000. The further negotiations could therefore only have been relevant if EPL 2101 had been renewed and further extended. Apart from this logical conclusion it was further explicitly set out in the letter that the prospecting licence of the third respondent was extended until 26<sup>th</sup> April 2000. This letter is dated 9<sup>th</sup> April 1998. On this evidence it seems to me reasonable to accept, as was indeed submitted by Mr. Chaskalson, that the sixth appellant was aware of the renewal of EPL 2101 during April 1998, and possibly even before the start of the renewal. The period of delay before institution of the review proceedings was therefore at least two years.</p> <p>  </p> <p> Mr. Barnard, although conceding that this was a long delay, submitted that it was not unreasonable. Counsel based this submission mainly on two factors. The first was a letter from the office of the President in terms of which certain undertakings were given and a clause in the old, as well as the new surface owners’ agreement, still under negotiation, was set out concerning the Green River Project and the undertaking by the third respondent to, wherever possible, fully co-operate in this project. Counsel submitted that the sixth appellant, armed with these documents, could reasonably conclude that his agricultural activities were safeguarded from interference from prospecting activities planned by the third respondent.</p> <p>  </p> <p> The letter from the Permanent Secretary to the President was dated 9<sup>th</sup> March 1995 and the relevant part reads as follows:</p> <p>  </p> <p> “The President said that contact shall be made with the relevant ministries to avoid co-existence of intensive agricultural and mining development on the same land. He further instructed me to assure you that the Orange River Irrigation Project will continue as planned and your plantings as well as your agricultural expansion will not be affected.”</p> <p>  </p> <p>  </p> <p>  </p> <p> Although Mr. Barnard initially conceded that there was no way in which this undertaking could be enforced he later on changed his mind. Counsel referred the Court to Article 27 of the Constitution which vested the executive power of the Republic in the President and Cabinet and provided for the President to exercise his functions in consultation with the Cabinet unless otherwise provided by law. Reference was also made to Article 40 which sets out the functions of Cabinet. In my opinion neither of these Articles would enable the President or a Minister to act contrary to the law, in this case the provisions of the Minerals Act, in terms of which the third respondent was given certain rights to prospect in certain areas situated on the farm Aussenkehr. We were not told how a directive from the President would have solved the situation. In my opinion the undertaking could only be enforced by either limiting the rights granted to the third respondent or by taking away such rights. Neither proposition would have been lawful.</p> <p>  </p> <p> Both factors argued by Mr. Barnard were, on the documents, not directly linked to the question of the delay for instituting review proceedings. When challenged by the first respondent in connection with the delay, the sixth appellant explained that it was following cheaper avenues knowing that the third respondent could not come onto the property without permission granted in terms of sec. 52 and that it would eventually have to approach the second respondent for relief if by negotiation a surface owners’ agreement did not materialized. During all this the option of a review remained open to the sixth appellant if all else should fail. No mention was made of the fact that it felt itself secure by the undertaking of the Office of the President. That reliance at this late stage on this factor was in all likelihood an afterthought seems to me to be supported by the chain of events that took place.</p> <p>  </p> <p> From the letter annexure “DV1.1” it must have been clear to the appellant that it was the intention of the third respondent to increase substantially their efforts to prospect for diamonds. It was mentioned in the letter that the third respondent would now start with bulk sampling and that it intended to spend a further N$ 23 million in this regard. As was stated by Mr. Barnard the situation became problematical early during 1998. All along during this time serious negotiations, at least as far as the third respondent was concerned, were underway in an attempt to break the impasse. When negotiations were not successful the third respondent applied to the Ancillary Rights Commission for relief and the parties went through a full fledged, albeit futile, hearing. At no stage did the sixth appellant rely on this undertaking or call upon those who gave the undertaking to come to his aid. When asked by the Court why that was so we were informed that Counsel had no instructions in this regard.</p> <p>  </p> <p> As far as reliance was placed on the clause in the surface owners’ contract the fact of the matter is of course that no such contract came into being and no assurance could therefore be placed on it. In this regard the third respondent alleged that the sixth appellant at least further contributed to the fact that no agreement could be reached between the parties by insisting on certain guarantees over which the third respondent had no control.</p> <p>  </p> <p> In deciding whether the delay was unreasonable it seems to me that the time during which the right of the third respondent endures, must also play a role. As previously pointed out the renewal was for a period of two years until 25<sup>th</sup> April 2000. The delay to take the matter on review spanned this whole period. This by itself puts a limit on the delay as an applicant may find that, once the right has run its course, the application for review may have become academic.</p> <p>  </p> <p> In all the circumstances I am of the opinion that the finding of the Court <em>a quo</em> that the delay was unreasonable was correct. The question then is whether the Court should have condoned the delay. This, as previously pointed out, required the Court to exercise a discretion. In this regard the Court <em>a quo</em> came to the conclusion that there was no valid ground on which it should do so. I am not persuaded that this Court should hold differently.</p> <p>  </p> <p> In my opinion the third respondent was prejudiced by the delay to bring the matter on review. Mr. Barnard conceded that there was inherent prejudice in a situation where a company is prevented from prospecting but he countered that by saying that it was shown by the appellants that there were no viable deposits of diamonds. This is begging the question. The evidence in this regard was mostly theoretical and where there were previously unsuccessful attempts to find diamonds the scale on which these attempts were made, may not have been as intensive as that now intended by the third respondent. In any event by further prospecting third respondent would be able to determine this question. Its willingness to spend a further N$ 23 million seems to contradict the expectations of the appellants. Mr. Chaskalson also pointed out that the explanation given, namely that the sixth appellant kept the review in abeyance for use if the negotiations for a surface owners’ contract were not to its liking, meant that the third respondent was led up the garden path without any idea that the respondent would still confront it with a major legal stumbling block. If the review was brought within a reasonable time and was successful third respondent could then go somewhere else instead of wasting time in negotiations which were destined to lead nowhere or to embark on proceedings before the second respondent which, if in its favour, would trigger a review application. I think there is merit in this submission.</p> <p>  </p> <p> It further seems to me that the right granted to the third respondent has lapsed through the effluxion of time and that the whole issue may have become academic. If not then it constitutes further prejudice which should be considered in deciding whether condonation should be granted.</p> <p>  </p> <p> In the case of <em>Kruger v Transnamib Ltd (Air Namibia) And Others, supra,</em> p 173ff, this Court discussed the nature of the discretion exercised by the Judge <em>a quo</em> and came to the conclusion that the Court of Appeal would only interfere in circumstances where the discretion was not judicially exercised. For the reasons set out above it cannot be said that the Judge did not exercise his discretion judiciously or that he acted capriciously or on a wrong principle and this point of appeal must also be rejected.</p> <p>  </p> <p> C. <u>THE DECLARATOR IN REGARD TO SECTIONS 52(1)(b)(i) AND 52(1)(d)(ii) OF THE MINERALS ACT.</u></p> <p>  </p> <p> In terms of their Notice of Motion (as amended) the appellants asked the following relief in pa. 2.4, namely –</p> <p>  </p> <p> “Declaring the rights sought by Third Respondent to be an infringement of:</p> <p> (a) …..</p> <p> (b) …..</p> <p> (c) …..</p> <p>  </p> <ol start="3"><li> <p> The provisions of sections 52(1)(b)(i) and 52(1)(d)(ii) of the Minerals Act;</p> </li> </ol><p>  </p> <p> and not capable of being granted to third Respondent in terms of any current authorizing legislative enactment or common law principle.”</p> <p>  </p> <p>  </p> <p> The two sections of the Minerals Act provide as follows:</p> <p>  </p> <p> “52(1) The holder of a mineral licence shall not exercise any rights conferred upon such holder by this Act or under any terms and conditions of such mineral licence –</p> <p>  </p> <p> (a) …..</p> <p>  </p> <p> (b) in, on or under any –</p> <p>  </p> <p> (i) town or village;</p> <p>  </p> <p> (ii) …..</p> <p>  </p> <p> (iii) …..</p> <p>  </p> <p> And otherwise in conflict with any law, if any, in terms of which such town, Village, road, aerodrome, harbour without the prior permission of the Minister granted upon an application to the Minister in such form as may be determined in writing by the Commissioner, by notice in writing and subject to such conditions as may be specified in such notice;</p> <p>  </p> <p> (c) …..</p> <p>  </p> <p> (d) In, on or under any private or State land -</p> <p>  </p> <p> (i) …..;</p> <p>  </p> <p> (ii) within a horizontal distance of 100 metres of any spring, well, borehole reservoir, dam, dipping-tank, waterworks, perennial stream or pan, artificially constructed watercourse, kraal, building or any structure of whatever nature;</p> <p>  </p> <p> (iii) …..;</p> <p>  </p> <p> (iv) …..;</p> <p>  </p> <p> without the prior permission in writing of the owner of such land, and in the case of land referred to in subparagraph (iv), of the holder of a mineral licence who has erected or constructed such accessory works on which it is proposed to exercise such right;</p> <p>  </p> <p>  </p> <p> The main thrust of Mr. Barnard’s argument was based on the fact of a village that came into being on the farm Aussenkehr and according to Counsel has been in existence for the past 20 years. I think it was common cause that the village, as it presently exists, would come within the ambit of the two above quoted prohibitions, more particularly in relation to the third respondents intended activities in regard to pit no. 1. A substantial quantity of the affidavit evidence before the Court was devoted to this issue. See in this regard more particularly the evidence of one Volkmann, a surveyor, and the map prepared by him. It also resulted in an amendment, during the course of the proceedings, of the Notice of Motion to include the provisions of sec. 52(1)(d)(ii). Because of the conclusion to which I have come it is not necessary to deal with this evidence in detail.</p> <p>  </p> <p> Counsel for the respondents submitted that the appellants misconceived the relief claimed in pa. 2.4. It was submitted that the two above provisions did not grant any rights to the third respondent, it merely dealt with exercising certain rights which it held in terms of its licence. A reading of the two subsections in context with the other provisions of sec. 52 makes that clear in my opinion. The right to prospect in a particular area was granted to the third respondent when he was awarded EPL 2101. However in the instances mentioned in the two subsections the exercise of that right was restricted subject to permission, in the one instance, that of the owner, and in the other instance, that of the Minister, being obtained. It was further submitted, correctly in my view, that in either instance the granting of permission or the refusal thereof was not subject to review by the Minerals Ancillary Rights Commission.</p> <p>  </p> <p> Before a licence holder can begin to exercise any of his rights he must enter into a written agreement with the owner of the land which must contain terms and conditions relating to the payment of compensation to the owner. So far this has not materialized. In this regard the third respondent can now invoke the provisions of sec. 110 of the Minerals Act and approach the Minerals Ancillary Rights Commission for certain relief. Only if the Commission is satisfied that on reasonable grounds a right of access to the land is reasonably necessary would it come to the relief of the licence holder and may grant any such right subject to such terms and conditions as it may think fit. (See sec. 109 and 10 of the Minerals Act.) This stage has also not yet been reached.</p> <p>  </p> <p> If the licence holder successfully overcomes this hurdle, and only if the prospecting activities fall within the prohibitions set out in sec 52(1)(b)(i) and or (d)(ii), he would only be able to exercise his rights within such areas once the permission of either the owner of the land or the Minister is obtained. I agree with Counsel for the respondents that to grant the order asked for by the appellants at this stage would be premature. The situation for which the Court is asked to grant relief might never arise. (See in this regard <em>Wahlhaus And Others v Additional Magistrate, Johannesburg and Another, </em>1959 (3) SA 113 (AD) and <em>S v Strowitzki, </em>1995 (2) SA 525(Nm HC) at 529G – 531). In the above two cases the Courts decided that although a Court of Appeal had the power to review or hear an appeal in the unterminated course of criminal proceedings in a lower court it would only do so in rare cases where grave injustice might otherwise result or where justice might not be obtained by other means. These principles were also applied in other Courts. (See <em>Serole and Another v Pienaar, </em>2000 (1) SA 328 (LCC); <em>Laggar v Shell Auto Care (Pty) Ltd and Another, </em>2001 (2) SA 136(CPD) As previously pointed out the Minerals Act provides for a full hearing before the Minerals Ancillary Rights Commission with an appeal to the high Court for anybody aggrieved by the order of the commission. Only if such an order is made in favour of the third respondent will the issues in sec. 52(1)(b)(i) and (d)(ii) emerge and then only if the necessary permissions are refused.</p> <p>  </p> <p> In any event the factual position is all but clear. Mr. Chaskalson has argued that at the time when the licence was granted the village did not extend within the area of Pit No. 1 and if that was so then the later encroachment of buildings on the area was unlawful and the third respondent would be entitled to evict any person trespassing in this regard. Mr. Barnard was not able to direct the Court to any evidence contradicting the statement by Mr. Chaskalson. Furthermore as far as Pits Nos. 2, 3 and 4 were concerned there was no evidence that they were within any prohibited areas as envisaged by the Act.</p> <p>  </p> <p> I am therefore of the opinion that this ground of appeal should also not succeed.</p> <p>  </p> <p> D. <u>COSTS</u>.</p> <p>  </p> <p> This part of the appeal can be divided into four sections, namely:</p> <p>  </p> <ol><li> <p> Costs orders made during the proceedings, mostly after interlocutory orders;</p> </li> <li> <p> The Cross-appeal concerning some of those orders;</p> </li> <li> <p> The costs of the postponement of 3 April 2003; and</p> </li> <li> <p> Costs of the appeal proper.</p> </li> </ol><p>  </p> <p> (i) <u>Costs orders made during the proceedings</u></p> <p>  </p> <p> During the long time that this matter ran in the Court <em>a quo</em> various interlocutory or interim applications were heard and costs orders made in relation to the outcome of such matters. Some of the matters were even finally disposed of, such as the third respondent’s counterclaim. The appeals in these matters only concern the cost orders and not the merits of the particular applications. The one feature that these matters have in common, which is also shared with the cross-appeal, is that at no stage was an application for leave to appeal made to the learned Judge in the Court <em>a quo</em> concerning these costs orders. Relying on sec 18(3) of the High Court Act, Act No. 16 of 1990, the appellant argued that the present appeal was not only in regard to costs and that therefore no leave to appeal was necessary. This argument was based on the fact that there was an appeal in regard to the merits of the main application. Counsel for the respondents were of the opinion that in each of these instances it was necessary to obtain the leave of the Court <em>a quo</em> and they consequently submitted that the appeal against these orders were not properly before this Court and should be struck from the roll.</p> <p>  </p> <p> Sec. 18(3) of Act No. 16 of 1990 provides as follows:</p> <p>  </p> <p> “No judgment or order where the judgment or order sought to be appealed from is an interlocutory order or an order as to costs only left by law to the discretion of the court shall be subject to appeal save with the leave of the court which has given the judgment or has made the order, or in the event of such leave to appeal being refused, leave to appeal being granted by the Supreme Court.”</p> <p>  </p> <p>  </p> <p>  </p> <p> It seems to me that there are particular reasons why it is necessary to obtain leave to appeal where the appeal sought is only against an order of costs. Firstly the trial judge who is steeped in the atmosphere and nuances of the matter is in a better position to exercise a discretion than a Court on appeal. Secondly, in awarding an order of costs the Judge in first instance exercised a discretion and an appeal Court would only interfere with the exercise of that discretion where it was not judicially exercised. (See <em>W v S and Others(2),</em> 1988 (1) SA 499(NPD) and <em>Erf One Six Seven Orchards CC v Greater Johannesburg Metropolitan Council (Johannesburg Administration) and Another,</em> 1999 (1) SA 104(SCA).) Further factors which are also relevant in my opinion is that very often a cost order follows the result of the main action and an appeal only against the order of costs has the effect that the Court of appeal is called upon to review and consider the merits of the main action. If there is no appeal against the main action the whole exercise may, under certain circumstances, be futile and a waste of time. In the case of <em>W v S, supra, </em>reference was further made to the principle of finality in proceedings and that the Court would not easily grant leave to appeal in respect of what had become a dead issue merely for the purpose of determining the appropriate costs order.</p> <p>  </p> <p> Bearing these factors in mind it seems to me that the fact that there is an appeal against the main action or application will only justify a right of appeal in regard to the costs order in the main action or application. Different considerations will apply where, during the process of the application, costs orders are awarded in regard to interlocutory or other interim issues or issues which are finally dispensed with. Such costs orders relate to the issue in regard of which the Court has made the order and in each instance the factors and principles, set out above, are applicable. On appeal the considerations which must be given to the award of costs in an interim order has nothing to do with the main action or application and may, as was the case in this matter, depend on facts and issues not relevant to the main action or application, e.g. an application to strike out certain offending allegations or hearsay matter, and may go for or against the party who is eventually successful in the main application. It follows therefore that where an appellant wants to appeal against an award of costs only in any such matter leave to appeal is necessary and a right of appeal cannot be conferred upon an appellant by lodging an appeal in the main application.</p> <p>  </p> <p> In the result I am of the opinion that the appellants’ appeal against the award of costs in various interim orders are not properly before this Court and should be struck from the roll.</p> <p>  </p> <p> (ii) <u>The Cross Appeal</u></p> <p>  </p> <p> For the reasons set out above the third respondent’s cross appeal against certain costs orders made by the Court <em>a quo</em> during the course of the proceedings are also not properly before the Court as no leave to appeal was sought in those instances. Counsel for the respondent conceded also that the matters could not be heard by this Court and they are likewise struck from the roll.</p> <p>  </p> <p> (iii) <u>The postponement of the appeal in April 2003</u></p> <p>  </p> <p> Although I was not a member of the Court when the application for a postponement was previously heard Counsel have kindly provided us with a full record of the argument which was raised on that occasion. When the matter came before the Court in April 2003 the appellants launched a substantive application for the postponement thereof pending a review which was to be heard in the High Court and which was related to the appeal before this Court. When the matter was called Mr. Henning, who then appeared for the third respondent, informed the Court of two points <em>in limine</em> he intended to argue. On enquiry by the Court, Counsel informed the Court that he did not give notice of these points to the appellants. Counsel was further of the opinion that if successful, that would be the end of the matter. Objection was raised by Mr. Barnard who insisted on proper notice and time to prepare. The Court was of the opinion that proper notice should have been given to the appellants and time to prepare argument in answer to the points. In the end the matter was postponed <em>sine die</em> and the costs of the postponement was reserved.</p> <p>  </p> <p> On that occasion it was pointed out by a member of the Bench that an endeavour should be made by the parties to complete the pending review proceedings in the High Court so that, if there was an appeal in that matter, that it be set down and heard simultaneously with the present and now postponed appeal.</p> <p>  </p> <p> Counsel for the first and second respondents opposed the appellants’ application for a postponement. However, because of certain allegations made against Mr. Chaskalson in the High Court, it was decided that Mr. Smuts would argue the issue of the postponement on behalf of first and second respondents.</p> <p>  </p> <p> From the above it is clear that the appellants applied for a postponement of the appeal. The third respondent took points <em>in limine</em> without any notice to the respondents. At the end of the day the matter was postponed <em>sine die</em>. On the one hand the appellants were requested to expedite the review proceedings so that, in the event of a further appeal in that regard, the matters could be heard together. The third respondent was ordered to give proper notice of the points it wished to argue<em> in limine. </em>Neither of these two events materialized. The review is still pending in the High Court but the appellants gave notice that they would not ask for a further postponement on the strength thereof. This abandonment only took place on 25<sup>th</sup> March 2004, shortly before the appeal was heard. This was set out in the affidavit of Mr. Ndauendapo. Mr. Smuts also pointed out that although the application was abandoned no tender for costs was made and further pointed out that there were some unexplained delays in bringing the review before the High Court. The third respondent has in the mean time replaced its legal representatives and the new legal team has not proceeded on the basis of any points <em>in limine</em>.</p> <p>  </p> <p> There can be no doubt that under the circumstances the first and second respondents are entitled to their wasted costs of the postponement. Under all the circumstances I am satisfied that it would be fair to order that the costs of first and second respondents wasted by the postponement of the 3<sup>rd</sup> April 2003 must be shared equally between the appellants and the third respondent. That also goes for the costs incurred when the matter was resumed during 19<sup>th</sup> to 20<sup>th</sup> April 2004.</p> <p>  </p> <p> Mr. Smuts was only instructed to argue the issue of the costs of postponement. Under the circumstances it seems fair to me to order that instructed Counsel’s fees, as far as the appearance in Court is concerned during the period 19<sup>th</sup> to 21<sup>st</sup> April 2004, be limited to appearance for one day when such costs are taxed.</p> <p>  </p> <p>  </p> <p> (vi) <u>Costs of the appeal proper</u></p> <p>  </p> <p> The appellants were unsuccessful and they must in my opinion be ordered to pay the costs of appeal of the respondents. I am also of the opinion that the matter was of some complexity involving interpretation of the Constitution on a totally novel point of importance. I am therefore satisfied that the matter warranted the appointment of two Counsel by the third respondent. As far as the first and second respondents are concerned we were informed by Mr. Chaskalson that he was initially led by senior Counsel and he asked that any order of costs should include the costs of two Counsel where applicable. Because of my finding above I will order that costs of the first and second respondents include the costs of two Counsel to the extent to which two Counsel have been engaged in the matter.</p> <p>  </p> <p> In the affidavit of Mr. Ndauendapo, dated 25<sup>th</sup> March 2004, the deponent stated that in the event that the present appeal, or any part thereof, be unsuccessful, the Court will be asked to let costs stand over for determination simultaneously with any appeal which may materialize in regard to the outstanding review matter, or if successful and no appeal results, appellants will then seek an order in this Court that they not be ordered to pay the costs of the present appeal if they were unsuccessful. Alternatively they would seek an order that the issue of costs be postponed and to be determined after the finalization of the pending review matter.</p> <p>  </p> <p> Although this was foreshadowed in the affidavit no further argument was addressed to us. In my opinion a judgment in the pending review matter will have no effect on the issues decided in the present appeal. It cannot affect the constitutional issue or the issues surrounding sec. 52 of the Minerals Act. The only possibility is the review of the granting of the licence for the period 1998 to 2000. However in this regard the Court came to the conclusion that the delay in bringing the review application was unreasonable and refused to condone it. The Court did not deal with the merits of the review which may be influenced by a finding in regard to the pending review. Consequently there is in my opinion no reason not to award the costs of this appeal at this stage. This is an instance where the Court should order that the appellants pay the costs of the appeal jointly and severally. See in this regard <em>Gemeeenskapsontwikkelingsraad v Williams and Others (2), </em>1977 (3) SA 955 (WLD.).</p> <p>  </p> <p> In the result the following orders are made:</p> <p>  </p> <p> 1. The appellants’ appeal is dismissed and the appellants are ordered to pay the costs of the respondents jointly and severally, the one paying the other to be absolved. Such costs to be the costs incumbent upon the briefing of two instructed Counsel. As far as the first and second respondents are concerned such costs shall include the costs of two instructed Counsel only to the extent that two Counsel have been engaged in the matter.</p> <p>  </p> <p> 2. The appellants’ appeal concerning various costs orders and the cross-appeal by the third respondent, also concerning certain costs orders, are each struck from the roll with costs.</p> <p>  </p> <p> 3. The wasted costs of the postponement of the appeal on the 3<sup>rd</sup> April 2003 and further argument on 19/20 April 2004 be paid by the appellants and the third respondent in equal shares. For the guidance of the taxing master it is ordered that the appearance of Counsel for first and second respondents on the 19/20 April 2004 be taxed for one day.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> ________________________</p> <p> STRYDOM. A.C.J.</p> <p>  </p> <p>  </p> <p>  </p> <p> I agree.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> ________________________</p> <p> O’LINN, A.J.A.</p> <p>  </p> <p>  </p> <p> I agree.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> ________________________</p> <p> SHIVUTE, A.J.A.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <table border="0" cellpadding="7" cellspacing="0" style="width:600px"><tbody><tr><td> <p> COUNSEL ON BEHALF OF THE APPELLANTS:</p> <p> INSTRUCTED BY:</p> <p>  </p> <p> COUNSEL ON BEHALF OF THE FIRST AND SECOND RESPONDENTS:</p> <p> ASSISTED BY:</p> <p> INSTRUCTED BY:</p> <p>  </p> <p> COUNSEL ON BEHALF OF THE THIRD RESPONDENT</p> <p> ASSISTED BY:</p> <p> INSTRUCTED BY:</p> </td> <td> <p> MR. T.A. BARNARD</p> <p> NATE NDAUENDAPO &amp; ASS.</p> <p>  </p> <p> MR. M. CHASKALSON</p> <p>  </p> <p> MR. D.F. SMUTS, S.C.</p> <p> GOVERNMENT ATTORNEYS</p> <p>  </p> <p> MR. J.J. GAUNTLETT, S.C.</p> <p>  </p> <p> MR. R. TöTEMEYER</p> <p> ELLIS &amp; PARTNERS</p> <p>  </p> </td> </tr></tbody></table><p>  </p> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-ce351e049751b2bfaf16ba040d9fc671466a128834e9e6467cb4622972fa65be"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p> CASE NO.: SA 14/2002</p> <p> IN THE SUPREME COURT OF NAMIBIA</p> <p> In the matter between</p> <table border="0" cellpadding="7" cellspacing="0" style="width:600px"><tbody><tr><td> <p> NAMIBIA GRAPE GROWERS AND EXPORTERS ASSOCIATION</p> <p>  </p> <p> NAMIBIA FARM WORKERS UNION</p> <p>  </p> <p> FTK HOLLAND BV</p> <p>  </p> <p> EXOTIC INTERNATIONAL (PTY) LTD</p> <p>  </p> <p> AUSSENKEHR TOWN DEVELOPERS (PTY) LTD</p> <p>  </p> <p> AUSSENKEHR FARMS (PTY) LTD</p> <p>  </p> <p> GRAPE VALLEY PACKERS (PTY) LTD</p> <p>  </p> <p> NAMIBIA NURSERIES (PTY) LTD</p> <p>  </p> <p> NAGRAPEX (PTY) LTD</p> <p>  </p> </td> <td> <p> FIRST APPELLANT</p> <p>  </p> <p>  </p> <p> SECOND APPELLANT</p> <p>  </p> <p> THIRD APPELLANT</p> <p>  </p> <p> FOURTH APPELLANT</p> <p>  </p> <p> FIFTH APPELLANT</p> <p>  </p> <p> SIXTH APPELLANT</p> <p>  </p> <p> SEVENTH APPELLANT</p> <p>  </p> <p> EIGHTH APPELLANT</p> <p>  </p> <p> NINTH APPELLANT</p> </td> </tr></tbody></table><p>  </p> <p> And</p> <p>  </p> <table border="0" cellpadding="7" cellspacing="0" style="width:600px"><tbody><tr><td> <p> THE MINISTRY OF MINES AND ENERGY</p> <p>  </p> <p> MINERAL ANCILLARY RIGHTS COMMISSION</p> <p>  </p> <p> NORTHBANK DIAMONDS LIMITED</p> </td> <td> <p> FIRST RESPONDENT</p> <p> SECOND RESPONDENT</p> <p>  </p> <p> THIRD RESPONDENT</p> </td> </tr></tbody></table><p>  </p> <p> CORAM: STRYDOM, A.C.J., O’LINN, A.J.A., <em>et</em> SHIVUTE, A.J.A.</p> <p> HEARD ON: 19 – 21/04/2004</p> <p> DELIVERED ON: 25/11/2004</p> <p> ___________________________________________________________________________</p> <p> <strong>APPEAL JUDGMENT</strong></p> <p> <strong>___________________________________________________________________________</strong></p> <p>  </p> <p> <u>STRYDOM, A.C.J.:</u> This is an appeal from a judgment of a single Judge dismissing the application brought by the appellants on an urgent basis and discharging the rule <em>nisi </em> which was issued on the 5<sup>th</sup> May 2000. This matter concerns, more particularly, certain provisions of the Minerals (Prospecting and Mining) Act, Act No. 33 of 1992 (the Minerals Act). As the rule <em>nisi</em>, which was issued on this occasion, closely followed the prayers set out in the Notice of Motion, it is only necessary to set out such rule ordered by the Court, namely:</p> <p>  </p> <p> “1. That a rule <em>nisi</em> be issued calling upon the Respondents to show cause, if any, why the following order should not be made on Friday 2 June 2000:</p> <p>  </p> <p> 1.1 That First Respondent be interdicted and restrained from interfering with the due processes of law, and more specifically from giving any ‘instructions’ to Third Respondent which:</p> <p>  </p> <ol><li> <p> would have the effect of interfering with any of the Applicants’ right and entitlement to have any dispute(s) between such Applicants and any of the Respondents adjudicated upon in terms of the due processes of law;</p> </li> </ol><p>  </p> <ol start="2"><li> <p> would have the effect of interfering with the Applicants’ constitutional right and entitlement to fair administrative justice, as enshrined in clause 18 of the Constitution of the Republic of Namibia</p> </li> </ol><p>  </p> <p> 1.2 Declaring:</p> <p>  </p> <ol><li> <p> the provisions of Part XV of the Minerals (Prospecting and Mining) Act, No 33 of 1992 to be <em> ultra vires</em> the provisions of clause 16(2) of the Constitution of the Republic of Namibia, and null and void an of no effect:</p> </li> </ol><p>  </p> <ol start="2"><li> <p> that Third Respondent has, for the above reasons, no rights and/or <em>locus standi</em> in the proceedings before the Second Respondent purportedly in terms of Part XV of the Minerals Act;</p> </li> </ol><p>  </p> <p>  </p> <ol start="3"><li> <p> that the convening and constitution of Second Respondent are declared to be nullities and of no force and effect;</p> </li> </ol><p>  </p> <p> 1.3 Declaring the purported renewal(s) by Second Respondent of Exclusive Prospecting Licence (“EPL 2101”) to be null and void, and by reason thereof, declaring Third Respondent not to have any <em>locus standi </em>before Second Respondent in its application in terms of section 109 of the Minerals Act;</p> <p>  </p> <p> 1.4 Declaring the rights sought by Third Respondent to be an infringement of:</p> <p>  </p> <ol><li> <p> Seventh Applicant’s constitutional rights as entrenched by clauses 16(2) and 98(2)(b) of the Constitution of the Republic of Namibia; and/or</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Seventh Applicant’s rights as entrenched by section 11 of the Foreign Investment Act, no 27 of 1990; and/or</p> </li> </ol><p>  </p> <ol start="3"><li> <p> Seventh Applicant’s interacting rights in terms of both the above Statutes; and/or</p> </li> </ol><p>  </p> <ol start="4"><li> <p> The provisions of sections 52(1)(b)(i) and 52(1)(d)(i) of the Minerals Act;</p> </li> </ol><p>  </p> <p> and not capable of being granted to third Respondent in terms of any current authorizing legislative enactment or common law principle;</p> <p>  </p> <p> 1.5 Interdicting and restraining Second Respondent from exercising any purported competencies, rights and/or duties, or from performing any acts in terms of the powers conferred by Part XV of the Minerals Act;</p> <p>  </p> <p> 1.6 Declaring the Respondents, jointly an severally, to be liable to pay Applicants’ costs;</p> <p>  </p> <p> 1.7 Granting to Applicants such further and/or alternative relief as this Honourable Court deems fit.</p> <p>  </p> <p> 2. That the rule <em>nisi</em> contained in paragraphs 1.1 operate as an interim interdict with immediate effect.</p> <p>  </p> <p> 3. The costs of these proceedings are to stand over for argument and determination on the return date.”</p> <p>  </p> <p>  </p> <p>  </p> <p> The only significant difference between the interim order granted and the prayers in the Notice of Motion was the fact that the Court did not order that prayer 2.5 (Order 1.5) should also operate as an interim interdict. Why this was so is of no relevance to the outcome of this case.</p> <p>  </p> <p> The Appellants were represented by Mr. Barnard. Mr. Chaskalson represented the first and second respondents whereas Mr. Smuts represented those respondents regarding the costs of the postponement of 3 April 2003. The third respondent was represented by Mr. Gauntlett assisted by Mr. Tötemeyer.</p> <p>  </p> <p> At the outset various matters ancillary to the appeal such as applications for condonation etc. were outstanding and opposed. However we were informed by Counsel that these issues were no longer contested. Because of the importance of the case the Court granted condonation where necessary and the matter proceeded on the merits of the appeal.</p> <p>  </p> <p> The application was supported by various affidavits. The main affidavit was made by the legal practitioner of the appellants who, in his affidavit, also dealt with the background to the application. It seems that an Exclusive Prospecting Licence with number 2101 (EPL 2101) was granted to a company with the name of Leotemp. Leotemp in turn transferred its rights to the third respondent. This happened on 25 June 1997. Thereafter the licence was again renewed until 25<sup>th</sup> April 2000. It is alleged that this renewal took place without any notice to the landowner and it is alleged that the <em>audi alteram partem</em>-rule was not complied with. The concession area, known as “block 9”, is situated on the Aussenkehr farm.</p> <p>  </p> <p> The farm Aussenkehr is extremely suitable for the growing and marketing of grapes and all of the applicants are in some way or another involved in this industry or represents workers so involved. It is further alleged that up to March 1998 prospecting was done by the third respondent in terms of a “surface owners’ agreement” as required by the Minerals Act. It is alleged that in terms of this agreement the owner expressed its intention to expand its farming operations and to that extent demarcated certain areas for such further expansion. The prospector undertook to use its best endeavours to prospect all such areas as soon as possible in order that these areas would become available for further grape cultivation.</p> <p>  </p> <p> This, however, did not happen. Instead it became clear that third respondent intended to excavate 4 pits of which pits 3 and 4 were situated within the area demarcated for further grape cultivation. Pits 1 and 2 would effectively fall within an area designated for the development of a township for the workers of Aussenkehr. In fact Pit 1 would be situated in an already existing portion of the informal settlement, housing some of the inhabitants of the village. Hence the application for the relief set out in paragraph 1.4 of the order.</p> <p>  </p> <p> The result of this was that when the “surface owners’” agreement expired in 1998 the Sixth appellant was not without more prepared to enter into a new agreement covering the renewal of EPL 2101. Attempts were made to solve the impasse but when this was unsuccessful, third respondent invoked the provisions of section 52(3) of the Minerals Act by an application to the second respondent to have the dispute resolved in terms of the provisions of section 110 (Part XV) of the Minerals Act. Third respondent thereupon launched an application to second respondent in terms of section 109(1) of the Minerals Act. The outcome of this application was in favour of the third respondent but was later, by agreement between the parties, set aside by the High Court because the Commission was, at one stage during the proceedings, not properly constituted. A fresh application was thereafter launched by the third respondent. It is this application that forms the subject matter for the relief claimed and set out in paragraph 1.5 of the interim order.</p> <p>  </p> <p> It was further alleged by the applicant that the activities by the third respondent were a breach of the applicant’s constitutional rights in terms of Articles 16 and 98(2)(b) of the Constitution and the applicant consequently asked the Court to declare Part XV of the Minerals Act, which sanctions such activities, to be <em>ultra vires</em> the provisions of the Constitution.</p> <p>  </p> <p> One Kennedy Ndilipunye Hamutenya, the Director of Mines in the Ministry of Mines and Energy, deposed to an affidavit on behalf of the first respondent. This deponent set out some of the history in regard to the viability of finding diamonds on Aussenkehr. In May 1996 two diamonds, totaling 0.95 carats, were found in Block 9. Hamutenya further confirmed the history of EPL 2101, as set out by the sixth appellant, and confirmed the renewal thereof in 1998. He also challenged the sixth appellant to state whether he was, at the time, aware of the application for renewal of the licence, and if so, why he did not seek an opportunity to make representations to the Minister, or protest the latter’s failure to give it an opportunity to be heard. Hamutenya denied that the Minister was under any obligation to hear the sixth appellant on the application for renewal of the licence and further stated that the issue was moot because the period of the renewal had already expired.</p> <p>  </p> <p> Hamutenya also denied the allegations set out in paragraph 12.9 of the founding affidavit and denied that at any stage a village or town existed in the designated areas where pits 1 and 2 were supposed to be dug. He further submitted that this issue was in any event not properly before the Court as it was an issue which was in the first instance one for the second respondent to decide in the context of the third respondent’s application in terms of section 109 of the Minerals Act.</p> <p>  </p> <p> The deponent also dealt with the sixth appellant’s allegations that, what the third respondent now intended to do, amounted to mining operations and he assured the appellants that the Ministry would not allow breaches of the provisions of the Minerals Act. Hamutenya said that the Ministry’s offer to arbitrate the dispute between the sixth appellant and the third respondent was a <em>bona fide</em> attempt to provide the parties with a speedier consensual resolution than a formal hearing before the second respondent.</p> <p>  </p> <p> In regard to the unconstitutionality of Chapter XV of the Minerals Act the deponent stated that on a proper interpretation of Article 16 of the Constitution the provisions of the Chapter did not limit property rights. In the alternative it was stated that the Chapter constituted a reasonable legislative scheme for the regulation of the rights of mineral licence holders and did therefore not violate the Constitution. It was alleged that Article 16 had to be interpreted to allow reasonable regulation of property rights. Further in the alternative it was alleged that if Chapter XV went beyond reasonable regulation and authorizes expropriation then expropriation was accompanied by just compensation and accordingly permissible under Article 16(2) of the Constitution.</p> <p>  </p> <p> In regard to annexure “ND 20” the deponent admitted that the letter was sent by the Permanent Secretary of the first respondent and stated that there was no legal basis for the last sentence of the letter. He furthermore undertook that the first respondent would not bypass any procedures required by the Minerals Act in relation to the dispute between the parties. This undertaking affected the interdict applied for by the appellants against the first respondent. This undertaking came to the knowledge of the appellants on 5<sup>th</sup> June 2000.</p> <p>  </p> <p> Second respondent’s answering affidavit was deposed to by its chairman Mr. Dirk Hendrik Conradie. The deponent stated that the second respondent opposed the relief sought in prayer 2.4(d) on the basis that it was sought prematurely and that the issues relating to this relief should actually be the subject of the second respondent’s hearing in terms of section 109 of the Minerals Act. In all other respects the second respondent abided by the decision of the Court.</p> <p>  </p> <p> The answering affidavit by the third respondent was deposed to by one Peter Walker, at the time, a director of the third respondent. He set out that an amount of some N$ 7 million had already been spent in exploration activities and that a further N$ 30 million would be spent on bulk sampling. If the first phase indicated viability a further N$ 15 million would be expended. He further stated that the reason why they agreed to have the ruling of the second respondent set aside was that it was established that for part of the hearing one of the members of the Commission was absent during the proceedings which fatally affected the outcome of the hearing. This deponent denied most of the allegations contained in the founding affidavit and also launched a counter application against the sixth appellant in which it was claimed that the Court declared that the written agreement, Annexure “15”, was a valid and binding surface owners’ agreement between the third respondent and the sixth appellant.</p> <p>  </p> <p> This counterclaim was later abandoned by the third respondent but not after some unnecessary time and energy was spent on it.</p> <p>  </p> <p> The replying affidavit of the legal practitioner of the appellants was described by him as provisional and preliminary due to the fact that some of the respondents did not comply with the time frame, laid down by the Court, in which they were to file their answering affidavits.</p> <p>  </p> <p> After the initial hearing, during which the rule <em>nisi</em> was issued, the matter was postponed and the respondents put on terms to deliver their answering affidavits on or before 19<sup>th</sup> of May and the appellants were ordered to reply on or before the 26<sup>th</sup> May. In terms of the Court order the matter was due for hearing on 2<sup>nd</sup> June 2000. Although the third respondent filed its answering affidavit and counterclaim on time the first and second respondents only did so on the 25<sup>th</sup> of May. This notwithstanding the third respondent insisted that its counterclaim be heard on 2<sup>nd</sup> of June. The background to all this was no longer relevant, however the applicant was able to file a long affidavit by one Dusan Vasiljevic, the Managing Director of the sixth appellant, as well as an affidavit by the legal practitioner of the applicants in which they dealt fully with the third respondent’s counterclaim.</p> <p>  </p> <p> Notwithstanding the insistence of the third respondent that the matter be heard on 2<sup>nd</sup> June the matter was not ripe for hearing and the parties agreed to a postponement and were placed on terms and given extended dates. These dates could also not be complied with and third respondent, in turn, launched an application for postponement and applied that its counterclaim be heard together with the main application. This application was opposed by the applicants. In the end the application was successful but was an example of the non-cooperation of the parties towards each other and was one of many side skirmishes which contributed to swelling the record to some 20 volumes. In the process the parties did not mince words and accusations of vexatious and other dishonest and fraudulent behaviour became part and parcel of the content of the various affidavits.</p> <p>  </p> <p> In an affidavit, which according to the legal practitioner of the appellants, was to replace his “preliminary and provisional” replying affidavit previously filed, and which only corrected some spelling mistakes, it was now conceded that one of the applicants, which was previously styled as the fifth applicant, namely Aussenkehr Small Business Association, had no <em>locus standi </em>to pursue the relief sought in the main application. However, according to the third respondent the affidavit went much further than correcting mistakes in the previous affidavit. This replying affidavit joined issue on most of the allegations contained in the affidavits of the respondents and also foresaw the filing of a further affidavit by an expert in support of the appellants’ case.</p> <p>  </p> <p> In a further affidavit Walker persisted that, as was set out in the counterclaim of the third respondent, the parties had reached a valid and binding agreement concerning the exercise of the right to prospect as set out in the claim.. This was supported by the legal representative of the third respondent, Ellis. In another affidavit dated 2<sup>nd</sup> August 2000 a Rule 14 application was attached in terms of which Ellis challenged the standing of a number of the appellants to bring the application. This affidavit was followed by a further application by Ellis requesting the Court to admit his affidavit of 2<sup>nd</sup> August 2000 with annexures. Notice was also given by the third respondent of an application to strike out matters contained in the founding and replying affidavits of the sixth appellant.</p> <p>  </p> <p> After leave was granted by the Court, the sixth appellant was allowed to file further affidavits in answer to the replying affidavits of the third respondent. The appellant was however placed on terms and because the affidavit was not filed within the dates set by the Court the sixth appellant also had to apply for condonation. This affidavit also dealt mainly with allegations relevant to the counter application which, as indicated above, were later not proceeded with. An affidavit was also filed by the legal practitioner of the appellants in answer to the challenge to the <em>locus standi </em>of certain of the appellants.</p> <p>  </p> <p> Another issue which drew fire from both sides was the Walmsley report, an environmental evaluation of the activities by the third respondent and which was obtained by the third respondent. When the appellants used this report to show the effect “trial mining” would have on the environment, objection was taken by the third respondent on the basis that the report was hearsay evidence and application was made to strike it out. This was met by a long affidavit deposed to by the legal practitioner of the appellants setting out why the report should be allowed.</p> <p>  </p> <p> Again by Notice of Motion dated 12<sup>th</sup> October 2000, sixth appellant applied that the supporting affidavit to the application be admitted as a further and supplementary replying affidavit on behalf of the appellants. The purpose of this was to support the founding affidavit of Ndauendapo in which it was alleged that the third respondent was only a shell company and that all the indications were that there were no viable diamond finds to be made on Aussenkehr. It was further stated that what the third respondent intended to do could no longer be described as prospecting and in fact amounted to mining which it was not allowed to do in terms of its licence. In order to support the allegations, Ndauendapo attached a previous application for security of costs and annexures. This new material comprised, together with annexures, some 159 typewritten pages.</p> <p>  </p> <p> On 21<sup>st</sup> February 2001 an inspection <em>in loco</em> was held on the farm. I will deal with this more fully at a later stage when and if it becomes necessary. However, the appellants, through their legal representative, utilized the opportunity to file a further affidavit “to enlarge upon what has been revealed by the Respondents and to set up an additional ground for relief.” To this extent the affidavit of one Volkmann, a professional land surveyor, was filed with the Court. The purpose of this exercise was for Volkmann to demonstrate by means of a map “all activities to be exercised by Northbank Diamonds in terms of their prospecting license, from any existing ‘spring, well, borehole, reservoir, dam, dippingtank, waterworks, perennial stream or pan, artificially constructed watercourse, kraal, building or any structure of whatever nature.’ Those being the structures envisaged by section 52(1)(d)(ii) of the Minerals Act. I will deal more fully with this affidavit if and when it becomes necessary.</p> <p>  </p> <p> This maneuver was met by the third respondent with strong opposition and an application was launched, in terms of Rule 30, to set aside the affidavits by Ndauendapo and Volkmann. The third respondent, through Walker, filed a long and voluminous affidavit containing <em>inter alia </em>extracts from the argument and evidence in proceedings which took place previously before the second respondent and what was said during the inspection <em>in loco</em>. This application was also a reply to the supplementary replying affidavit of Ndauendapo. A steady stream of further affidavits kept coming, seemingly by agreement between the parties and with the approval of the Court. In his affidavit Walker availed himself of strong language and accused Ndauendapo of advancing “a false, baseless and ever changing <em>mala fide </em>case.”</p> <p>  </p> <p> The attack of Walker was strongly objected to by the legal practitioner of the appellants who seemed to hold the legal representatives of the third respondent responsible for the attack and threatened them with legal action. On the 29<sup>th</sup> June yet a further affidavit was filed by Ndauendapo which dealt, <em>inter alia</em>, also with issues pertaining to Walker’s affidavit which the deponent did not deal with in his previous affidavits.</p> <p>  </p> <p> I have given a short overview of the chronological development of this case and one cannot help thinking that the Court <em>a quo</em> should have kept a firmer hand on the reigns and should not have allowed the parties to roam almost at will. The matter became out of control when the applicants deponent, Ndauendapo, had to distinguish between his provisional and preliminary and additional and supplementary replying affidavits. When further affidavits were filed they were just called “affidavit” and the reader was warned not to be misled by the description of the document. Affidavits on both sides did not hesitate to accuse deponents on the other side of being <em>mala fide</em> or dishonest or of abusing the process of the Court. An extreme example of this was the replying affidavit of Walker. For the most part this affidavit as well as Ndauendapo’s reply thereto had no relevance to the issues and the relief claimed. Most of this affidavit was then also struck out. Affidavits were repetitive and sometimes even contain legal argument with reference to decided cases. Another ludicrous situation arose when the third respondent insisted on having its counterclaim adjudicated separately from the main application. The counter-claim was then postponed to an earlier date. Thereafter the third respondent had second thoughts and decided to have the counterclaim heard together with the main claim but was then met with opposition with the result that the third respondent then had to bring a formal application for a postponement. All this for nothing because the counterclaim was withdrawn in the end but this illustrated the attitude of the parties</p> <p>  </p> <p> One factor which caused the note of enmity which soon crept into the proceedings was in my opinion the fact that all the main affidavits of the appellants were deposed by their legal practitioner with confirming affidavits by the clients. This Court has on a previous occasion warned against this practice and there is no doubt in my mind that this practice must be discouraged, if need be, by appropriate orders for costs. (See in this regard <em>Vaatz and Another v Klotzsch and Others, unreported judgment of this Court, delivered on 11 October 2002. )</em> In the <em>Vaatz</em> case<em> </em>this Court also warned litigants not to make unfounded and unnecessary accusations of dishonest conduct against their opponents. The Court also warned legal practitioners not to allow their clients to act in this way. However allegations of some or other reprehensible conduct on the part of the other party appeared almost in every affidavit and, as previously stated, the affidavit of Walker went far beyond what is acceptable. It seems to me that the parties are equally to blame for this situation. Because of the conclusion to which I have come in this appeal I do not intend to make any special orders in this regard.</p> <p>  </p> <p> When the matter was argued Counsel on all sides were, notwithstanding the voluminous documentation and evidence placed before the Court, able to crystallize the main issues and to confine their arguments to those issues. Apart from an appeal against certain costs orders and the question of who was responsible for the costs of the postponement of the appeal in April 2003, the appeal turned on three main issues, namely the constitutionality of Part XV of the Minerals Act, the review application in regard to the renewal of EPL 2101 in 1998 and the application based on the provisions of section 52 of the same Act.</p> <p>  </p> <p> <strong>A. <u>CONSTITUTIONALITY OF PART XV OF THE MINES AND MINERALS</u></strong><u> <strong>ACT</strong></u></p> <p>  </p> <p> The heading of Part XV of the Act reads ‘Ancillary Rights’. In terms of sec. 108 a Minerals Ancillary Rights Commission (the Commission) is established consisting of a chairperson and two members It furthermore applies the provisions of the Commissions Act, Act No. 8 of 1947, to the proceedings of the Commission. Sec. 109 is the <em>raison d’etre</em> of the Commission. It states that where it is reasonably necessary for the holder of a non-exclusive prospecting licence, a mineral licence or a mining claim to obtain a right:</p> <p>  </p> <p> “(a) to enter upon land in order to carry on operations authorized by such licence or mining claim on such land;</p> <p>  </p> <p> (b) to erect or construct accessory works on any land for purposes of such operations;</p> <p>  </p> <p> (c) to obtain a supply of water or any other substance in connection with such operations;</p> <p>  </p> <p> (d) to dispose of water or any other substance obtained during such operations;</p> <p>  </p> <p> (e) to do anything else in order to exercise any right conferred upon him or her by such licence or mining claim;”</p> <p>  </p> <p>  </p> <p> and such holder is prevented from carrying on such operations by, e.g. the owner of the land or any person competent to grant such right, then the holder of the licence can apply to the Commission to grant him such right. The section further provides for the procedure to be followed, the notices to be given to the owner or other interested party or parties and call upon them to make representations in opposition to such application. Sec. 110 provides for a hearing of the application and further states that the interested party or parties shall be heard either personally or through a legal representative and further provides for the cross-examination of any witnesses. If the Commission is on reasonable grounds satisfied that it is reasonably necessary for such holder to obtain such a right it may grant the right subject to such terms and conditions and for such period as the Commission may think fit. Under certain circumstances the chairperson may also, as an interim measure, and before a hearing takes place, grant to the holder such right which shall lapse on the date that the application, made in terms of sub-sec. (1), is considered and decided upon by the Commission. Sec. 112 empowers the Commission to determine an amount for compensation in regard to any right granted by it which shall be payable before the exercise thereof if security therefore has not been given. Sec. 113 gives to any person aggrieved by an order of the Commission a right of appeal to the High Court of Namibia.</p> <p>  </p> <p> The Court was asked to draw certain inferences from the provisions of sec. 107 of Part XV and it is therefore necessary to set out this provision in full, namely –</p> <p>  </p> <p> “107. The provisions of this Part, in so far as they provide for a limitation on the fundamental rights contemplated in subarticle (1) of Article 16 of the Namibian Constitution in order to authorize, subject to an obligation to pay just compensation, the holder of a non-exclusive prospecting licence, a mineral licence or a mining claim to enter upon any land of any person for purposes of carrying on operations authorized by such licence, are enacted upon the authority conferred by sub article (2) of that Article.”</p> <p>  </p> <p>  </p> <p> Article 16 of the Constitution, to which reference is made in sec. 107 of the Act, is part of the Bill of Rights contained in the Namibian Constitution and forms the basis of the attack launched by the appellants on the constitutionality of Part XV of the Minerals Act. This Article provides as follows:</p> <p>  </p> <p> “Article 16 Property</p> <p> (1) All persons shall have the right in any part of Namibia to acquire, own and dispose of all forms of immovable and movable property individually or in association with others and to bequeath their property to their heirs or legatees: provided that Parliament may by legislation prohibit or regulate as it deems expedient the right to acquire property by persons who are not Namibian citizens.</p> <p>  </p> <p> (2) The State or a competent body or organ authorized by law may expropriate property in the public interest subject to the payment of just compensation, in accordance with requirements and procedures to be determined by Act of Parliament.”</p> <p>  </p> <p>  </p> <p>  </p> <p> Various other articles of the Constitution are also relevant to the question concerning constitutionality. These are articles 131, 22 and 25(1). These articles provide as follows:</p> <p>  </p> <p> “Article 131 Entrenchment of Fundamental Rights and Freedoms:</p> <p>  </p> <p> No repeal or amendment of any of the provisions of Chapter 3 hereof, in so far as such repeal or amendment diminishes or detracts from the fundamental rights and freedoms contained and defined in that Chapter, shall be permissible under this Constitution, and no such purported repeal or amendment shall be valid or have any force or effect.”</p> <p>  </p> <p> “Article 22 Limitation upon Fundamental Rights and Freedoms</p> <p>  </p> <p> Whenever or wherever in terms of this Constitution the limitation of any fundamental rights or freedoms contemplated by this Chapter is authorized, any law providing for such limitation shall:</p> <p>  </p> <ol><li> <p> be of general application, shall not negate the essential content thereof, and shall not be aimed at a particular individual;</p> </li> <li> <p> specify the ascertainable extent of such limitation and identify the Article or Articles hereof on which authority to enact such limitation is claimed to rest.”</p> </li> </ol><p>  </p> <p>  </p> <p> “Article 25 Enforcement of Fundamental Rights and Freedoms</p> <p>  </p> <p> (1) Save in so far as it may be authorized to do so by this Constitution, Parliament or any subordinate legislative authority shall not make any law, and the Executive and the agencies of Government shall not take any action which abolishes or abridges the fundamental rights and freedoms conferred by this Chapter, an any law or action in contravention thereof shall to the extent of the contravention be invalid provided that:…”</p> <p>  </p> <p>  </p> <p>  </p> <p> The above provisions of the Constitution stipulates, firstly that the Rights and Freedoms, set out in Chapter 3, cannot be repealed and can only be amended in so far as such amendment does not diminish or detract anything from the Rights and Freedoms so set out in that Chapter. Secondly the limitation of the Rights is only permissible where this is authorized by the Constitution and then only to the extent set out in Article 22. Thirdly any Act of Parliament which abolishes or abridges any of the Rights or Freedoms shall to that extent be invalid.</p> <p>  </p> <p> On behalf of the appellants it was submitted by Mr. Barnard that there could not be any question that the provisions of Part XV of the Act limits the property rights of a landowner and as the Minerals Act is an Act of Parliament it is subject to the above limitations. Referring to Article 22 Counsel submitted that the Legislator was aware of the effect of the provisions of Part XV and in order to find some authorization for the limitation of Article 16 it enacted the provisions of sec. 107 of the Minerals Act. Counsel however submitted that Part XV was not saved by sec. 107 as Article 16(2) deals with expropriation and sanctions the expropriation of land under certain circumstances. Part XV, so it was submitted, falls short of expropriation and only limits the use and enjoyment of his property by a landowner. Consequently Part XV, which limits the property rights of a Landowner without there being any authorization for such limitation, results in the provisions of Part XV being unconstitutional.</p> <p>  </p> <p> Counsel further submitted that the argument by the respondents that Article 16 only entrenched and safeguarded the framework within which property could be acquired, can be owned and disposed of and nothing more, was flawed. Counsel submitted that Article 16 safeguarded the component rights of ownership and not only certain of those rights as argued by the respondents. Counsel further submitted that even if Part XV of the Minerals Act was a reasonable legislative act then the provisions thereof were not saved because, unlike the South African Constitution, the Namibian Constitution did not contain a general limitation clause based on the reasonableness of the legislation. (See sec. 36(1) of the South African Constitution, Act 108 of 1996).</p> <p>  </p> <p> Mr. Chaskalson, on behalf of the 1<sup>st</sup> and 2<sup>nd </sup> respondents , submitted that Article 16 had to be interpreted in harmony with Article 100 of the Constitution. In this regard it was firstly argued by Counsel that, seen in this way, the encroachment on the interests of a surface owner by the owner of the mineral rights did not impact on property within the contemplation of Article 16. Alternatively, and if the Court should find that the encroachment did impact on the property of the surface owner, then Counsel submitted that Article 16(2) expressly permitted the appropriation of property by a competent body authorized to act in terms of the law and on payment of just compensation. Article 16 tacitly permits the reasonable regulation of property rights in the public interest. To that extent the Article authorizes interference with property rights which falls short of expropriation and therefore provides for a reasonable regulation of competing interests of surface owner and mineral rights holder. Counsel confirmed that ownership protected by Article 16(1) was not limited to the instances mentioned in the Article or to some “sticks in the bundle” of property rights. However the Article did not exclude reasonable regulation by the State in regard to property rights.</p> <p>  </p> <p> Mr. Chaskalson further pointed out that on the argument of Mr. Barnard an intransigent surface owner would be able to render the right of a holder of mineral rights nugatory. If Part XV was unconstitutional, as submitted by Mr. Barnard, then there was no means whereby a holder of mineral rights might, e.g. enter on the property to exercise his rights, if permission to enter on the property was not granted by the surface owner. That meant that the right, which was regarded as property, and was protected similarly by Article 16, was unprotected. Mr. Chaskalson submitted that the contentions by the appellants were absurd and would bring about a result not intended by the Constitution.</p> <p>  </p> <p> Mr. Gauntlett associated himself with the argument of Mr. Chaskalson for the first respondent. He pointed out that the appellants sought three declaratory orders and he referred the Court to the applicable law. Referring to the argument by Counsel for the appellants Mr. Gauntlett said that what Counsel was contending for was that Article 16 established an absolute right of surface ownership incapable of regulation. What was protected by the article was, on the interpretations given by this Court in regard to purposive interpretation of the Constitution, the full ownership in property. Mr. Gauntlett pointed out that the history of Namibia showed that mineral rights always vested in the State which was then free to licence mining operations. Reading Articles 16, 100 and 140 together, what the Constitution is providing for in its scheme was that the existing dispensation on mining laws, as one form of property rights, was carried through. The right to mine carries with it the ancillary rights set out in Part XV of the Minerals Act and is, if sensibly interpreted, intended to alleviate the position of the surface landowner.</p> <p>  </p> <p> The interpretation of Article 16 of the Constitution read with Articles 22 and 131 leads, according to Counsel for the appellants, to the inevitable conclusion that the ownership in property, be it movable or immovable, is not capable of regulation where such regulation abolishes or abridges any of the rights comprising ownership in property. The only limitation on ownership provided for in Article 16 is expropriation by the State, or a body set up in terms of the law, for public purposes and against payment of just compensation. This, so it was submitted by Counsel, was due to an oversight by the founding fathers when they drafted the Constitution. On the one hand Mr. Barnard submitted that the Constitution was immutable and that Part XV of the Mines and Minerals Act infringed the rights of a landowner and was therefore unconstitutional. On the other hand the enormity of such a submission forced Counsel to further submit that the Constitution was not cut in stone and such an obvious <em>lacuna </em>would be capable of correction by the Legislature, although it was conceded that any subsequent drafting to provide for regulation would itself diminish or abridge Article 16.</p> <p>  </p> <p> Certain issues crystallized during argument and became common cause. One such issue concerned the content of ownership in property. It was submitted by Mr. Barnard that the protection given by Article 16 extended over all rights included in property ownership and not only in some of the rights. During argument both Counsel on behalf of the respondents explained their stance and only qualified the protection so granted to ownership being subject to reasonable regulation. I agree that the protection granted by the Article encompasses the totality of the rights in ownership of property. This Article, being part of Chapter III of the Constitution, must be interpreted in a purposive and liberal way so as to accord to subjects the full measure of the rights inherent in ownership of property. (See in this regard <em>Minister of Defence v Mwandinghi, </em>1993 NR 63 SC).</p> <p>  </p> <p> Another issue on which there was unanimity between the parties was the issue whether an exclusive prospecting licence was property. In my opinion the parties correctly agreed that such licence was property in the hands of the holder thereof. (See in this regard <em>Minister of Defence v Mwandinghi, supra,</em> p. 75.)</p> <p>  </p> <p> Thirdly the parties were <em>ad idem </em>that Article 100 of the Constitution vested mineral rights, for so far as they were not privately owned, in the State. In regard to Namibia mineral rights vested in the State since Colonial times. (See in this regard Imperial Mining Ordinance for German South West Africa, 8<sup>th</sup> August 1905 and Proc. 21 of 1919, Proc. 4 of 1940, Ord. 26 of 1954, Ord. 20 of 1968 and presently Act 33 of 1992).</p> <p>  </p> <p> I agree with Counsel, on behalf of the Respondents, that the question whether Part XV of the Minerals Act is constitutional must be determined on the provisions of the various Articles of the Constitution read with Article 100. The source for the enactment of the Minerals Act is to be found in Article 100 of the Constitution itself which vests those rights in the State. Constitutionally these rights never formed part of ownership in landed property and can therefore not be seen as <em>ex post facto</em> limiting the right of ownership of a landowner in regard of which the provisions of Article 22 of the Constitution must apply. The Minerals Act regulates the granting and the exercising of those rights and the relationship between the State and any holder on which such rights are conferred in terms of the Minerals Act. Because of a possible conflict between the exercise of such rights and the rights of the owner of landed property, the Act provides for machinery by means of which it attempts to resolve any dispute by balancing the competing rights and thereby relieving the tension so created. It is in this regard that Part XV of the Act, and to a certain extent also sections 51 and 52, play a role.</p> <p>  </p> <p> The contention by the appellants’ Counsel that Part XV of the Minerals Act is unconstitutional carries in its wake the logical result that all and any regulation in regard to property, in so far as such regulation may abridge, in the least, one or any of the “bundle” of rights, of which ownership in property consists, such regulation will be invalid as it conflicts with the provisions of Article 16 of the Constitution. This was conceded by Counsel for the appellants. According to Counsel no provision was made for regulating of property in this regard. This caused Mr. Gauntlett to remark that whenever the State wanted to impose some or other regulation in regard to property, e.g. to regulate the possession of arms and ammunition, they would not be able to do so except to expropriate all arms and ammunition.</p> <p>  </p> <p> Mr. Gauntlett, on the other hand, submitted that it was not the intention of the founding fathers to change the property regime in Namibia. The purpose of Article 16 was to protect the right of individuals and body corporates to acquire and possess property and did not intend this to change on the advent of Independence. Both Counsel for the respondents further pointed out that an interpretation of Article 16 as an absolute and rigid provision, incapable of accommodating reasonable regulation of property, was untenable. Counsel also pointed out that, because of the provisions of Article 131, there was no way in which the situation could be corrected if the interpretation of Mr. Barnard was correct.</p> <p>  </p> <p> There is no doubt in my mind that if Mr. Barnard is correct we are facing a major crisis. His submission that the failure to provide for regulation, as far as property was concerned, as a mere oversight which could always be amended is all but reassuring, more particularly bearing in mind that such a correction itself would be, on his argument, an abridging of the provisions of Article 16 and would thus be in conflict with Article 131. No authority was cited by him in support of the proposition that amendment would be possible.</p> <p>  </p> <p> The owner of property has the right to possess, protect, use and to enjoy his property. This is inherent in the right to own property. It is however in the enjoyment and use of property that an owner may come into conflict with the rights and interests of others and it is in this sphere that regulation in regard to property is mostly needed and in many instances absolutely necessary. Such regulation may prohibit the use of the property in some specific way or limit one or other individual right without thereby confiscating the property and without thereby obliging the State to pay compensation. There are many such examples where, to a greater or lesser degree, the use or enjoyment of property, be it movable or immovable, is regulated by legislation and which would, on the argument of Mr. Barnard, constitute a limitation on the right of ownership which will then render such legislation unconstitutional and can be challenged by anyone against whom such legislation is enforced.</p> <p>  </p> <p> A search through the legislative publications of Namibia, as well as legislation taken over from the previous dispensation, support the above statement. Examples of these are, Ordinance 19 of 1957 controlling the eradication of weeds on land; Act 59 of 1968, controlling the sale of agricultural products; Act 3 of 1973, controlling agricultural pests; Act 12 of 1981, controlling the meat industry and Act 24 of 1995 making it compulsory to brand cattle; Act 13 of 1956, controlling animal diseases; Act 76 of 1969, dealing with soil erosion and Act 70 of 1970, prohibiting the subdivision of land under certain circumstances. All the above legislation is aimed at the use of land and agricultural products.</p> <p>  </p> <p> Examples of control over other property are Act 6 0f 1998, the sale of alcohol; Act 7 of 1996, the control of arms and ammunition; Ord. 30 of 1967 and Act 22 of 1999, the control over the use of motor vehicles; Act 25 of 1964, control over the price of certain goods and Act 54 of 1956, control over the use of water under certain circumstances.</p> <p>  </p> <p> The above are only examples of the control by the State over the property of its subjects and inhabitants in Namibia. It is in my opinion inconceivable that the founding fathers of our Constitution were unaware of the vast body of legislation regulating the use and exercise of rights applicable to ownership or that it was their intention to do away with such regulation. Without the right to such control it seems to me that it would be impossible for the Legislature to fulfil its function to make laws for the peace, order and good government of the country in the best interest of the people of Namibia. (Art. 63(1) of the Constitution.) It therefore seems to me that, like the right to equality before the law (Art. 10(1) of the Constitution), the right to ownership in property is not absolute but is subject to certain constraints which, in order to be constitutional, must comply with certain requirements.</p> <p>  </p> <p> In <u>Constitutional Law of India</u> by H.M. Seervai, 3<sup>rd</sup> Edition, Vol. II, pa. 14.24, the Author, discussing Arts. 19(1)(f), and 31, before these articles were amended, of the Indian Constitution, dealing with the right of citizens to acquire, hold and dispose of property both movable and immovable, pointed out that the sovereignty of the State involves three elements, namely the power to tax, “police power” and “eminent domain”. The author further stated that ‘police power’ was defined as “the inherent power of a government to exercise reasonable control over person and property within its jurisdiction in the interest of general security, health, safety, morals and welfare except where legally prohibited (as by constitutional provision).” The accepted definition for ’eminent domain’ is “the power of the sovereign to take property for public use without the owner’s consent upon making just compensation”. The distinction between an exercise of the State’s police power and its power of eminent domain is familiar to South African expropriation law. (See in this regard: Davis, Cheadle and Haysom: <u>Fundamental Rights in the Constitution: </u> p 243.)</p> <p>  </p> <p> It seems to me that in so far as a comparison can be drawn this distinction between the State’s police power and its power of eminent domain is to a certain extent inspirational for Art. 16 of our Constitution and that Art. 16(1) can be compared to the State’s police powers and Art. 16(2) its powers of eminent domain. If it is then accepted, as I do, that Article 16 protects ownership in property subject to its constraints as they existed prior to Independence and that Article 16 was not meant to introduce a new format free from any constraints then, on the strength of what is stated above, and bearing in mind the sentiments and values expressed in our Constitution, it seems to me that legislative constraints placed on the ownership of property which are reasonable, which are in the public interest and for a legitimate object, would be constitutional. To this may be added that, bearing in mind the provisions of the Constitution, it follows in my opinion that legislation which is arbitrary would not stand scrutiny by the Constitution.</p> <p>  </p> <p> To the extent set out above I agree with the submissions by Counsel for the respondents. This case, as far as I know, is the first concerning the interpretation of Article 16. I therefore do not want to imply that the requirements in the previous paragraph are a closed list and the final interpretation of the Article. It should in my opinion be allowed to develop as the need arises, if any.</p> <p>  </p> <p> This brings me to Part XV of the Minerals Act. In my opinion the constitutionality of this legislation can be approached on two grounds. Firstly, and as was pointed out previously, mineral rights vested in the State by virtue of Article 100 of the Constitution. As such the inroad into the property right of the landowner is created and sanctioned by the Constitution. In so far as the mineral rights may be transferred by the State into private ownership, it is, as property, also protected by Article 16 of the Constitution.</p> <p>  </p> <p> However, because of the origin of the right, being the Constitution itself, it cannot be said that it is the Minerals Act, or for that matter Part XV thereof, which abolishes or abridges, (See Article 25), the fundamental right of ownership protected under Article 16. The Minerals Act does no more than give effect and content to the right so vested by the Constitution and Part XV contains reasonable provisions for the balancing of this right <em>vis-à-vis</em> any other interests or rights, e.g. that of the landowner. Providing, as it does, for a proper hearing, the payment of compensation where necessary and control by the Courts of the land in regard to any order made by the Ancillary Rights Commission, there is no basis upon which the provisions of Part XV can be said to be unreasonable. I also do not understand Counsel for the Appellants submitting that the provisions are unreasonable.</p> <p>  </p> <p> Secondly, and bearing in mind the inherent power of the State over persons and property to exercise reasonable control, Part XV is enacted in the public interest and for a legitimate object and is a reasonable mechanism whereby similar contesting rights are balanced to ensure equal protection of those rights in terms of the Constitution. On this basis also it cannot be said that the provisions of Part XV of the Minerals Act are unconstitutional.</p> <p>  </p> <p> The interpretation of Counsel for the appellants will inevitably lead to the absurdity that it pre-supposes that any regulation in regard to ownership which controls to any extent one or other of the rights in ownership of property will be unconstitutional. In regard to the particular provisions of the Minerals Act the interpretation of Counsel is to the effect that a landowner could, <em>ad infinitum, </em>frustrate the rights of the holder of a mineral licence and that notwithstanding the fact that such right was property and was sanctioned by the Constitution itself. The owner, by refusing permission to a licence holder to enter upon his land, can effectively circumvent such right.</p> <p>  </p> <p> Reference was made to the provisions of sec. 107 of Part XV and it was submitted by Counsel for the appellants that the legislature itself was aware that the provisions of this Part of the Act would impact on the rights of ownership and that they therefore attempted to save the provisions by referring to Article 16(2) of the Constitution as authority for the abridgement of ownership rights protected by sec. 16(1). It was however submitted that Article 16(2) could not save the situation as it dealt with expropriation proper and did not cover the instance where only one or other of the rights inherent in ownership of land was diminished. However, on the reasoning set out above it seems to me, as was also submitted by Counsel for the respondents, that the Legislator was perhaps over-cautious in enacting sec. 107. As was further pointed out by Counsel for the respondents the possibility of an expropriation was always present and that it was thought prudent to include reference to Article 16(2) of the Constitution. In my opinion the inference Counsel for the appellants wanted us to draw from the inclusion of sec. 107 is not justified. In any event it is for the Court, and not the Legislator, to interpret the provisions of the Constitution and the Minerals Act.</p> <p>  </p> <p> I am, for the above reasons, of the opinion that the appeal cannot succeed on this ground.</p> <p>  </p> <p> B. <u>REVIEW OF THE RENEWAL OF THE LICENCE IN 1998</u></p> <p>  </p> <p> The second ground of appeal concerns the finding by the Court<em> a quo</em> that the review, brought by the appellants, was not within a reasonable time. The learned Judge further found that there were also no valid grounds on which the Court could relax the rule with the result that the Court dismissed the application for a review.</p> <p>  </p> <p> Because no specific time is prescribed for the institution of review proceedings, the Courts, as part of their inherent power to regulate their own procedure, have laid down that a review must be brought within a reasonable time. The requirement of a reasonable time is necessary in order to obviate possible prejudice to the other party and because it is in the interest of the administration of justice and the parties that finality should be reached in litigation. Where the point is raised that there has been unreasonable delay the Court must first determine whether the delay was unreasonable. This is a factual enquiry depending on the circumstances of each case. Once it is satisfied that the delay was unreasonable the Court must determine whether it should condone the delay. In this regard the Court exercises a discretion. Because the circumstances in each particular case may differ from the next case, what is, or what is not, regarded in other cases to be an unreasonable delay is not of much help, except to see perhaps what weight was given to certain factors. (See <em>Schoultz v Voorsitter, Personeel-Advieskomitee van die Munisipale Raad </em> <em>van George, en ‘n Ander, </em>1983 (4) SA 689(KPA); <em>Setsoskosane Busdiens (Edms) Bpk. v Voorsitter, Nasionale Vervoerkommissie, en ‘n Ander,</em> 1986 (2) SA 57(AD); <em>Radebe v Government of the Republic of South Africa and Others, </em>1995 (3) SA 787(NPD); <em>Mnisi v Chauke and Others; Chauke v Provincial Secretary, Transvaal, and Others, </em>1994 (4) SA 715(TPD); <em>Kruger v Transnamib Ltd (Air Namibia) and Others, </em>1996 NR 168(SC); and <em>Lion Match Co. Ltd v Paper Printing Wood &amp; Allied Workers Union and Others, </em>2001 (4) SA 149(SCA).)<em> </em></p> <p>  </p> <p> In the case of <em>Wolgroeiers Afslaers (Edms.) Bpk. v Munisipaliteit van Kaapstad,</em> 1978 (1) SA 13 (A.A.), the South African Appeal Court decided that prejudice to the other party was not a pre-requisite before an application can be dismissed on the ground of unreasonable delay. Prejudice is however a relevant consideration in such matters. It is further clear that the issue of unreasonable delay may also be raised <em>mero motu</em> by the Court. (See <em>Radebe’s case, supra, </em>798 G-H and <em>Disposable Medical Products (Pty) Ltd v Tender Board of Namibia and Others, </em>1997 NR 129(HC).)</p> <p>  </p> <p> The first factual finding to be made is the length of time since the applicant became aware of the renewal of the licence and when the review proceedings were launched. Mr. Barnard submitted that it was common cause that the appellant became aware of the renewal during August of 1998. As the present proceedings were instituted on the 2<sup>nd</sup> May 2000 it follows that the period it took the appellants to bring the application is three months short of two years. However Mr. Chaskalson is not in agreement with the appellant in regard to the length of time which it took to bring the proceedings. Counsel referred the Court to the affidavit of deponent Dusan Vasiljevic, on behalf of the sixth appellant, in which the history of negotiations concerning a further surface owner’s agreement for the renewal of the licence was set out. Attached to this affidavit, as annexure “DV1.1”, was a letter written by the deponent on behalf of the third respondent, Walker, addressed to the Permanent Secretary of Mines and Energy. According to the letter it was copied to Mr. H. Diekman, at that time the legal representative of the sixth appellant, as well as to Mr. Vaseljevic, the managing director of the sixth appellant. The fact that the letter was attached to an affidavit by Vaseljevic seems to me to confirm that the letter, or a copy thereof, reached its destination. This letter concerns the negotiations between the parties to attempt to reach a new surface owners’ agreement in the place of the old agreement which had expired in March 1998. That was shortly before the expiration of EPL 2101 on the 25<sup>th</sup> April 2000. The further negotiations could therefore only have been relevant if EPL 2101 had been renewed and further extended. Apart from this logical conclusion it was further explicitly set out in the letter that the prospecting licence of the third respondent was extended until 26<sup>th</sup> April 2000. This letter is dated 9<sup>th</sup> April 1998. On this evidence it seems to me reasonable to accept, as was indeed submitted by Mr. Chaskalson, that the sixth appellant was aware of the renewal of EPL 2101 during April 1998, and possibly even before the start of the renewal. The period of delay before institution of the review proceedings was therefore at least two years.</p> <p>  </p> <p> Mr. Barnard, although conceding that this was a long delay, submitted that it was not unreasonable. Counsel based this submission mainly on two factors. The first was a letter from the office of the President in terms of which certain undertakings were given and a clause in the old, as well as the new surface owners’ agreement, still under negotiation, was set out concerning the Green River Project and the undertaking by the third respondent to, wherever possible, fully co-operate in this project. Counsel submitted that the sixth appellant, armed with these documents, could reasonably conclude that his agricultural activities were safeguarded from interference from prospecting activities planned by the third respondent.</p> <p>  </p> <p> The letter from the Permanent Secretary to the President was dated 9<sup>th</sup> March 1995 and the relevant part reads as follows:</p> <p>  </p> <p> “The President said that contact shall be made with the relevant ministries to avoid co-existence of intensive agricultural and mining development on the same land. He further instructed me to assure you that the Orange River Irrigation Project will continue as planned and your plantings as well as your agricultural expansion will not be affected.”</p> <p>  </p> <p>  </p> <p>  </p> <p> Although Mr. Barnard initially conceded that there was no way in which this undertaking could be enforced he later on changed his mind. Counsel referred the Court to Article 27 of the Constitution which vested the executive power of the Republic in the President and Cabinet and provided for the President to exercise his functions in consultation with the Cabinet unless otherwise provided by law. Reference was also made to Article 40 which sets out the functions of Cabinet. In my opinion neither of these Articles would enable the President or a Minister to act contrary to the law, in this case the provisions of the Minerals Act, in terms of which the third respondent was given certain rights to prospect in certain areas situated on the farm Aussenkehr. We were not told how a directive from the President would have solved the situation. In my opinion the undertaking could only be enforced by either limiting the rights granted to the third respondent or by taking away such rights. Neither proposition would have been lawful.</p> <p>  </p> <p> Both factors argued by Mr. Barnard were, on the documents, not directly linked to the question of the delay for instituting review proceedings. When challenged by the first respondent in connection with the delay, the sixth appellant explained that it was following cheaper avenues knowing that the third respondent could not come onto the property without permission granted in terms of sec. 52 and that it would eventually have to approach the second respondent for relief if by negotiation a surface owners’ agreement did not materialized. During all this the option of a review remained open to the sixth appellant if all else should fail. No mention was made of the fact that it felt itself secure by the undertaking of the Office of the President. That reliance at this late stage on this factor was in all likelihood an afterthought seems to me to be supported by the chain of events that took place.</p> <p>  </p> <p> From the letter annexure “DV1.1” it must have been clear to the appellant that it was the intention of the third respondent to increase substantially their efforts to prospect for diamonds. It was mentioned in the letter that the third respondent would now start with bulk sampling and that it intended to spend a further N$ 23 million in this regard. As was stated by Mr. Barnard the situation became problematical early during 1998. All along during this time serious negotiations, at least as far as the third respondent was concerned, were underway in an attempt to break the impasse. When negotiations were not successful the third respondent applied to the Ancillary Rights Commission for relief and the parties went through a full fledged, albeit futile, hearing. At no stage did the sixth appellant rely on this undertaking or call upon those who gave the undertaking to come to his aid. When asked by the Court why that was so we were informed that Counsel had no instructions in this regard.</p> <p>  </p> <p> As far as reliance was placed on the clause in the surface owners’ contract the fact of the matter is of course that no such contract came into being and no assurance could therefore be placed on it. In this regard the third respondent alleged that the sixth appellant at least further contributed to the fact that no agreement could be reached between the parties by insisting on certain guarantees over which the third respondent had no control.</p> <p>  </p> <p> In deciding whether the delay was unreasonable it seems to me that the time during which the right of the third respondent endures, must also play a role. As previously pointed out the renewal was for a period of two years until 25<sup>th</sup> April 2000. The delay to take the matter on review spanned this whole period. This by itself puts a limit on the delay as an applicant may find that, once the right has run its course, the application for review may have become academic.</p> <p>  </p> <p> In all the circumstances I am of the opinion that the finding of the Court <em>a quo</em> that the delay was unreasonable was correct. The question then is whether the Court should have condoned the delay. This, as previously pointed out, required the Court to exercise a discretion. In this regard the Court <em>a quo</em> came to the conclusion that there was no valid ground on which it should do so. I am not persuaded that this Court should hold differently.</p> <p>  </p> <p> In my opinion the third respondent was prejudiced by the delay to bring the matter on review. Mr. Barnard conceded that there was inherent prejudice in a situation where a company is prevented from prospecting but he countered that by saying that it was shown by the appellants that there were no viable deposits of diamonds. This is begging the question. The evidence in this regard was mostly theoretical and where there were previously unsuccessful attempts to find diamonds the scale on which these attempts were made, may not have been as intensive as that now intended by the third respondent. In any event by further prospecting third respondent would be able to determine this question. Its willingness to spend a further N$ 23 million seems to contradict the expectations of the appellants. Mr. Chaskalson also pointed out that the explanation given, namely that the sixth appellant kept the review in abeyance for use if the negotiations for a surface owners’ contract were not to its liking, meant that the third respondent was led up the garden path without any idea that the respondent would still confront it with a major legal stumbling block. If the review was brought within a reasonable time and was successful third respondent could then go somewhere else instead of wasting time in negotiations which were destined to lead nowhere or to embark on proceedings before the second respondent which, if in its favour, would trigger a review application. I think there is merit in this submission.</p> <p>  </p> <p> It further seems to me that the right granted to the third respondent has lapsed through the effluxion of time and that the whole issue may have become academic. If not then it constitutes further prejudice which should be considered in deciding whether condonation should be granted.</p> <p>  </p> <p> In the case of <em>Kruger v Transnamib Ltd (Air Namibia) And Others, supra,</em> p 173ff, this Court discussed the nature of the discretion exercised by the Judge <em>a quo</em> and came to the conclusion that the Court of Appeal would only interfere in circumstances where the discretion was not judicially exercised. For the reasons set out above it cannot be said that the Judge did not exercise his discretion judiciously or that he acted capriciously or on a wrong principle and this point of appeal must also be rejected.</p> <p>  </p> <p> C. <u>THE DECLARATOR IN REGARD TO SECTIONS 52(1)(b)(i) AND 52(1)(d)(ii) OF THE MINERALS ACT.</u></p> <p>  </p> <p> In terms of their Notice of Motion (as amended) the appellants asked the following relief in pa. 2.4, namely –</p> <p>  </p> <p> “Declaring the rights sought by Third Respondent to be an infringement of:</p> <p> (a) …..</p> <p> (b) …..</p> <p> (c) …..</p> <p>  </p> <ol start="3"><li> <p> The provisions of sections 52(1)(b)(i) and 52(1)(d)(ii) of the Minerals Act;</p> </li> </ol><p>  </p> <p> and not capable of being granted to third Respondent in terms of any current authorizing legislative enactment or common law principle.”</p> <p>  </p> <p>  </p> <p> The two sections of the Minerals Act provide as follows:</p> <p>  </p> <p> “52(1) The holder of a mineral licence shall not exercise any rights conferred upon such holder by this Act or under any terms and conditions of such mineral licence –</p> <p>  </p> <p> (a) …..</p> <p>  </p> <p> (b) in, on or under any –</p> <p>  </p> <p> (i) town or village;</p> <p>  </p> <p> (ii) …..</p> <p>  </p> <p> (iii) …..</p> <p>  </p> <p> And otherwise in conflict with any law, if any, in terms of which such town, Village, road, aerodrome, harbour without the prior permission of the Minister granted upon an application to the Minister in such form as may be determined in writing by the Commissioner, by notice in writing and subject to such conditions as may be specified in such notice;</p> <p>  </p> <p> (c) …..</p> <p>  </p> <p> (d) In, on or under any private or State land -</p> <p>  </p> <p> (i) …..;</p> <p>  </p> <p> (ii) within a horizontal distance of 100 metres of any spring, well, borehole reservoir, dam, dipping-tank, waterworks, perennial stream or pan, artificially constructed watercourse, kraal, building or any structure of whatever nature;</p> <p>  </p> <p> (iii) …..;</p> <p>  </p> <p> (iv) …..;</p> <p>  </p> <p> without the prior permission in writing of the owner of such land, and in the case of land referred to in subparagraph (iv), of the holder of a mineral licence who has erected or constructed such accessory works on which it is proposed to exercise such right;</p> <p>  </p> <p>  </p> <p> The main thrust of Mr. Barnard’s argument was based on the fact of a village that came into being on the farm Aussenkehr and according to Counsel has been in existence for the past 20 years. I think it was common cause that the village, as it presently exists, would come within the ambit of the two above quoted prohibitions, more particularly in relation to the third respondents intended activities in regard to pit no. 1. A substantial quantity of the affidavit evidence before the Court was devoted to this issue. See in this regard more particularly the evidence of one Volkmann, a surveyor, and the map prepared by him. It also resulted in an amendment, during the course of the proceedings, of the Notice of Motion to include the provisions of sec. 52(1)(d)(ii). Because of the conclusion to which I have come it is not necessary to deal with this evidence in detail.</p> <p>  </p> <p> Counsel for the respondents submitted that the appellants misconceived the relief claimed in pa. 2.4. It was submitted that the two above provisions did not grant any rights to the third respondent, it merely dealt with exercising certain rights which it held in terms of its licence. A reading of the two subsections in context with the other provisions of sec. 52 makes that clear in my opinion. The right to prospect in a particular area was granted to the third respondent when he was awarded EPL 2101. However in the instances mentioned in the two subsections the exercise of that right was restricted subject to permission, in the one instance, that of the owner, and in the other instance, that of the Minister, being obtained. It was further submitted, correctly in my view, that in either instance the granting of permission or the refusal thereof was not subject to review by the Minerals Ancillary Rights Commission.</p> <p>  </p> <p> Before a licence holder can begin to exercise any of his rights he must enter into a written agreement with the owner of the land which must contain terms and conditions relating to the payment of compensation to the owner. So far this has not materialized. In this regard the third respondent can now invoke the provisions of sec. 110 of the Minerals Act and approach the Minerals Ancillary Rights Commission for certain relief. Only if the Commission is satisfied that on reasonable grounds a right of access to the land is reasonably necessary would it come to the relief of the licence holder and may grant any such right subject to such terms and conditions as it may think fit. (See sec. 109 and 10 of the Minerals Act.) This stage has also not yet been reached.</p> <p>  </p> <p> If the licence holder successfully overcomes this hurdle, and only if the prospecting activities fall within the prohibitions set out in sec 52(1)(b)(i) and or (d)(ii), he would only be able to exercise his rights within such areas once the permission of either the owner of the land or the Minister is obtained. I agree with Counsel for the respondents that to grant the order asked for by the appellants at this stage would be premature. The situation for which the Court is asked to grant relief might never arise. (See in this regard <em>Wahlhaus And Others v Additional Magistrate, Johannesburg and Another, </em>1959 (3) SA 113 (AD) and <em>S v Strowitzki, </em>1995 (2) SA 525(Nm HC) at 529G – 531). In the above two cases the Courts decided that although a Court of Appeal had the power to review or hear an appeal in the unterminated course of criminal proceedings in a lower court it would only do so in rare cases where grave injustice might otherwise result or where justice might not be obtained by other means. These principles were also applied in other Courts. (See <em>Serole and Another v Pienaar, </em>2000 (1) SA 328 (LCC); <em>Laggar v Shell Auto Care (Pty) Ltd and Another, </em>2001 (2) SA 136(CPD) As previously pointed out the Minerals Act provides for a full hearing before the Minerals Ancillary Rights Commission with an appeal to the high Court for anybody aggrieved by the order of the commission. Only if such an order is made in favour of the third respondent will the issues in sec. 52(1)(b)(i) and (d)(ii) emerge and then only if the necessary permissions are refused.</p> <p>  </p> <p> In any event the factual position is all but clear. Mr. Chaskalson has argued that at the time when the licence was granted the village did not extend within the area of Pit No. 1 and if that was so then the later encroachment of buildings on the area was unlawful and the third respondent would be entitled to evict any person trespassing in this regard. Mr. Barnard was not able to direct the Court to any evidence contradicting the statement by Mr. Chaskalson. Furthermore as far as Pits Nos. 2, 3 and 4 were concerned there was no evidence that they were within any prohibited areas as envisaged by the Act.</p> <p>  </p> <p> I am therefore of the opinion that this ground of appeal should also not succeed.</p> <p>  </p> <p> D. <u>COSTS</u>.</p> <p>  </p> <p> This part of the appeal can be divided into four sections, namely:</p> <p>  </p> <ol><li> <p> Costs orders made during the proceedings, mostly after interlocutory orders;</p> </li> <li> <p> The Cross-appeal concerning some of those orders;</p> </li> <li> <p> The costs of the postponement of 3 April 2003; and</p> </li> <li> <p> Costs of the appeal proper.</p> </li> </ol><p>  </p> <p> (i) <u>Costs orders made during the proceedings</u></p> <p>  </p> <p> During the long time that this matter ran in the Court <em>a quo</em> various interlocutory or interim applications were heard and costs orders made in relation to the outcome of such matters. Some of the matters were even finally disposed of, such as the third respondent’s counterclaim. The appeals in these matters only concern the cost orders and not the merits of the particular applications. The one feature that these matters have in common, which is also shared with the cross-appeal, is that at no stage was an application for leave to appeal made to the learned Judge in the Court <em>a quo</em> concerning these costs orders. Relying on sec 18(3) of the High Court Act, Act No. 16 of 1990, the appellant argued that the present appeal was not only in regard to costs and that therefore no leave to appeal was necessary. This argument was based on the fact that there was an appeal in regard to the merits of the main application. Counsel for the respondents were of the opinion that in each of these instances it was necessary to obtain the leave of the Court <em>a quo</em> and they consequently submitted that the appeal against these orders were not properly before this Court and should be struck from the roll.</p> <p>  </p> <p> Sec. 18(3) of Act No. 16 of 1990 provides as follows:</p> <p>  </p> <p> “No judgment or order where the judgment or order sought to be appealed from is an interlocutory order or an order as to costs only left by law to the discretion of the court shall be subject to appeal save with the leave of the court which has given the judgment or has made the order, or in the event of such leave to appeal being refused, leave to appeal being granted by the Supreme Court.”</p> <p>  </p> <p>  </p> <p>  </p> <p> It seems to me that there are particular reasons why it is necessary to obtain leave to appeal where the appeal sought is only against an order of costs. Firstly the trial judge who is steeped in the atmosphere and nuances of the matter is in a better position to exercise a discretion than a Court on appeal. Secondly, in awarding an order of costs the Judge in first instance exercised a discretion and an appeal Court would only interfere with the exercise of that discretion where it was not judicially exercised. (See <em>W v S and Others(2),</em> 1988 (1) SA 499(NPD) and <em>Erf One Six Seven Orchards CC v Greater Johannesburg Metropolitan Council (Johannesburg Administration) and Another,</em> 1999 (1) SA 104(SCA).) Further factors which are also relevant in my opinion is that very often a cost order follows the result of the main action and an appeal only against the order of costs has the effect that the Court of appeal is called upon to review and consider the merits of the main action. If there is no appeal against the main action the whole exercise may, under certain circumstances, be futile and a waste of time. In the case of <em>W v S, supra, </em>reference was further made to the principle of finality in proceedings and that the Court would not easily grant leave to appeal in respect of what had become a dead issue merely for the purpose of determining the appropriate costs order.</p> <p>  </p> <p> Bearing these factors in mind it seems to me that the fact that there is an appeal against the main action or application will only justify a right of appeal in regard to the costs order in the main action or application. Different considerations will apply where, during the process of the application, costs orders are awarded in regard to interlocutory or other interim issues or issues which are finally dispensed with. Such costs orders relate to the issue in regard of which the Court has made the order and in each instance the factors and principles, set out above, are applicable. On appeal the considerations which must be given to the award of costs in an interim order has nothing to do with the main action or application and may, as was the case in this matter, depend on facts and issues not relevant to the main action or application, e.g. an application to strike out certain offending allegations or hearsay matter, and may go for or against the party who is eventually successful in the main application. It follows therefore that where an appellant wants to appeal against an award of costs only in any such matter leave to appeal is necessary and a right of appeal cannot be conferred upon an appellant by lodging an appeal in the main application.</p> <p>  </p> <p> In the result I am of the opinion that the appellants’ appeal against the award of costs in various interim orders are not properly before this Court and should be struck from the roll.</p> <p>  </p> <p> (ii) <u>The Cross Appeal</u></p> <p>  </p> <p> For the reasons set out above the third respondent’s cross appeal against certain costs orders made by the Court <em>a quo</em> during the course of the proceedings are also not properly before the Court as no leave to appeal was sought in those instances. Counsel for the respondent conceded also that the matters could not be heard by this Court and they are likewise struck from the roll.</p> <p>  </p> <p> (iii) <u>The postponement of the appeal in April 2003</u></p> <p>  </p> <p> Although I was not a member of the Court when the application for a postponement was previously heard Counsel have kindly provided us with a full record of the argument which was raised on that occasion. When the matter came before the Court in April 2003 the appellants launched a substantive application for the postponement thereof pending a review which was to be heard in the High Court and which was related to the appeal before this Court. When the matter was called Mr. Henning, who then appeared for the third respondent, informed the Court of two points <em>in limine</em> he intended to argue. On enquiry by the Court, Counsel informed the Court that he did not give notice of these points to the appellants. Counsel was further of the opinion that if successful, that would be the end of the matter. Objection was raised by Mr. Barnard who insisted on proper notice and time to prepare. The Court was of the opinion that proper notice should have been given to the appellants and time to prepare argument in answer to the points. In the end the matter was postponed <em>sine die</em> and the costs of the postponement was reserved.</p> <p>  </p> <p> On that occasion it was pointed out by a member of the Bench that an endeavour should be made by the parties to complete the pending review proceedings in the High Court so that, if there was an appeal in that matter, that it be set down and heard simultaneously with the present and now postponed appeal.</p> <p>  </p> <p> Counsel for the first and second respondents opposed the appellants’ application for a postponement. However, because of certain allegations made against Mr. Chaskalson in the High Court, it was decided that Mr. Smuts would argue the issue of the postponement on behalf of first and second respondents.</p> <p>  </p> <p> From the above it is clear that the appellants applied for a postponement of the appeal. The third respondent took points <em>in limine</em> without any notice to the respondents. At the end of the day the matter was postponed <em>sine die</em>. On the one hand the appellants were requested to expedite the review proceedings so that, in the event of a further appeal in that regard, the matters could be heard together. The third respondent was ordered to give proper notice of the points it wished to argue<em> in limine. </em>Neither of these two events materialized. The review is still pending in the High Court but the appellants gave notice that they would not ask for a further postponement on the strength thereof. This abandonment only took place on 25<sup>th</sup> March 2004, shortly before the appeal was heard. This was set out in the affidavit of Mr. Ndauendapo. Mr. Smuts also pointed out that although the application was abandoned no tender for costs was made and further pointed out that there were some unexplained delays in bringing the review before the High Court. The third respondent has in the mean time replaced its legal representatives and the new legal team has not proceeded on the basis of any points <em>in limine</em>.</p> <p>  </p> <p> There can be no doubt that under the circumstances the first and second respondents are entitled to their wasted costs of the postponement. Under all the circumstances I am satisfied that it would be fair to order that the costs of first and second respondents wasted by the postponement of the 3<sup>rd</sup> April 2003 must be shared equally between the appellants and the third respondent. That also goes for the costs incurred when the matter was resumed during 19<sup>th</sup> to 20<sup>th</sup> April 2004.</p> <p>  </p> <p> Mr. Smuts was only instructed to argue the issue of the costs of postponement. Under the circumstances it seems fair to me to order that instructed Counsel’s fees, as far as the appearance in Court is concerned during the period 19<sup>th</sup> to 21<sup>st</sup> April 2004, be limited to appearance for one day when such costs are taxed.</p> <p>  </p> <p>  </p> <p> (vi) <u>Costs of the appeal proper</u></p> <p>  </p> <p> The appellants were unsuccessful and they must in my opinion be ordered to pay the costs of appeal of the respondents. I am also of the opinion that the matter was of some complexity involving interpretation of the Constitution on a totally novel point of importance. I am therefore satisfied that the matter warranted the appointment of two Counsel by the third respondent. As far as the first and second respondents are concerned we were informed by Mr. Chaskalson that he was initially led by senior Counsel and he asked that any order of costs should include the costs of two Counsel where applicable. Because of my finding above I will order that costs of the first and second respondents include the costs of two Counsel to the extent to which two Counsel have been engaged in the matter.</p> <p>  </p> <p> In the affidavit of Mr. Ndauendapo, dated 25<sup>th</sup> March 2004, the deponent stated that in the event that the present appeal, or any part thereof, be unsuccessful, the Court will be asked to let costs stand over for determination simultaneously with any appeal which may materialize in regard to the outstanding review matter, or if successful and no appeal results, appellants will then seek an order in this Court that they not be ordered to pay the costs of the present appeal if they were unsuccessful. Alternatively they would seek an order that the issue of costs be postponed and to be determined after the finalization of the pending review matter.</p> <p>  </p> <p> Although this was foreshadowed in the affidavit no further argument was addressed to us. In my opinion a judgment in the pending review matter will have no effect on the issues decided in the present appeal. It cannot affect the constitutional issue or the issues surrounding sec. 52 of the Minerals Act. The only possibility is the review of the granting of the licence for the period 1998 to 2000. However in this regard the Court came to the conclusion that the delay in bringing the review application was unreasonable and refused to condone it. The Court did not deal with the merits of the review which may be influenced by a finding in regard to the pending review. Consequently there is in my opinion no reason not to award the costs of this appeal at this stage. This is an instance where the Court should order that the appellants pay the costs of the appeal jointly and severally. See in this regard <em>Gemeeenskapsontwikkelingsraad v Williams and Others (2), </em>1977 (3) SA 955 (WLD.).</p> <p>  </p> <p> In the result the following orders are made:</p> <p>  </p> <p> 1. The appellants’ appeal is dismissed and the appellants are ordered to pay the costs of the respondents jointly and severally, the one paying the other to be absolved. Such costs to be the costs incumbent upon the briefing of two instructed Counsel. As far as the first and second respondents are concerned such costs shall include the costs of two instructed Counsel only to the extent that two Counsel have been engaged in the matter.</p> <p>  </p> <p> 2. The appellants’ appeal concerning various costs orders and the cross-appeal by the third respondent, also concerning certain costs orders, are each struck from the roll with costs.</p> <p>  </p> <p> 3. The wasted costs of the postponement of the appeal on the 3<sup>rd</sup> April 2003 and further argument on 19/20 April 2004 be paid by the appellants and the third respondent in equal shares. For the guidance of the taxing master it is ordered that the appearance of Counsel for first and second respondents on the 19/20 April 2004 be taxed for one day.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> ________________________</p> <p> STRYDOM. A.C.J.</p> <p>  </p> <p>  </p> <p>  </p> <p> I agree.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> ________________________</p> <p> O’LINN, A.J.A.</p> <p>  </p> <p>  </p> <p> I agree.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> ________________________</p> <p> SHIVUTE, A.J.A.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <table border="0" cellpadding="7" cellspacing="0" style="width:600px"><tbody><tr><td> <p> COUNSEL ON BEHALF OF THE APPELLANTS:</p> <p> INSTRUCTED BY:</p> <p>  </p> <p> COUNSEL ON BEHALF OF THE FIRST AND SECOND RESPONDENTS:</p> <p> ASSISTED BY:</p> <p> INSTRUCTED BY:</p> <p>  </p> <p> COUNSEL ON BEHALF OF THE THIRD RESPONDENT</p> <p> ASSISTED BY:</p> <p> INSTRUCTED BY:</p> </td> <td> <p> MR. T.A. BARNARD</p> <p> NATE NDAUENDAPO &amp; ASS.</p> <p>  </p> <p> MR. M. CHASKALSON</p> <p>  </p> <p> MR. D.F. SMUTS, S.C.</p> <p> GOVERNMENT ATTORNEYS</p> <p>  </p> <p> MR. J.J. GAUNTLETT, S.C.</p> <p>  </p> <p> MR. R. TöTEMEYER</p> <p> ELLIS &amp; PARTNERS</p> <p>  </p> </td> </tr></tbody></table><p>  </p></span></div></div> </div> </div> Mon, 05 Oct 2020 14:50:56 +0000 Anonymous 9132 at http://namiblii.org Erongo Regional Council and Others v Wlotzkasbaken Home Owners Association and Another (SA 6 of 2008) [2009] NASC 2 (17 March 2009); http://namiblii.org/na/judgment/supreme-court/2009/2 <span class="field field--name-title field--type-string field--label-hidden">Erongo Regional Council and Others v Wlotzkasbaken Home Owners Association and Another (SA 6 of 2008) [2009] NASC 2 (17 March 2009);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/786" hreflang="und">EL</a></div> <div class="field__item"><a href="/taxonomy/term/406" hreflang="und">Injunction</a></div> <div class="field__item"><a href="/taxonomy/term/335" hreflang="und">Procedural Fairness</a></div> <div class="field__item"><a href="/taxonomy/term/207" hreflang="und">Rationality</a></div> <div class="field__item"><a href="/taxonomy/term/473" hreflang="und">Constitutional Supremacy</a></div> <div class="field__item"><a href="/taxonomy/term/584" hreflang="und">Free prior informed consent</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 10/05/2020 - 14:49</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>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.</p> <p>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.</p> <p>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.</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-rtf file--general"> <a href="https://media.namiblii.org/files/judgments/nasc/2009/2/2009-nasc-2.rtf" type="application/rtf; length=139896">2009-nasc-2.rtf</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.namiblii.org/files/judgments/nasc/2009/2/2009-nasc-2.pdf" type="application/pdf; length=156480">2009-nasc-2.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p> IN THE SUPREME COURT OF NAMIBIA</p> <p> <strong>REPORTABLE</strong></p> <p> <strong>CASE NO.: SA 6/2008</strong></p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> <strong>IN THE SUPREME COURT OF NAMIBIA</strong></p> <p>  </p> <p>  </p> <p> In the matter between:</p> <p>  </p> <p>  </p> <p> <strong>THE ERONGO REGIONAL COUNCIL FIRST APPELLANT</strong></p> <p>  </p> <p> <strong>THE MINISTER OF REGIONAL, </strong></p> <p> <strong>LOCAL GOVERNMENT AND HOUSING SECOND APPELLANT</strong></p> <p>  </p> <p> <strong>THE CHAIRPERSON OF </strong></p> <p> <strong>THE TOWNSHIPS BOARD THIRD APPELLANT</strong></p> <p>  </p> <p>  </p> <p> and</p> <p>  </p> <p>  </p> <p> <strong>WLOTZKASBAKEN HOME </strong></p> <p> <strong>OWNERS ASSOCIATION FIRST RESPONDENT </strong></p> <p>  </p> <p> <strong>KERRY SEAN McNAMARA SECOND RESPONDENT</strong></p> <p>  </p> <p>  </p> <p>  </p> <p> CORAM: Strydom, AJA, Chomba, AJA and Mtambanengwe, AJA.</p> <p>  </p> <p> Heard on: 2008/10/16</p> <p>  </p> <p> Delivered: 2008/03/17</p> <p>  </p> <p>  </p> <p> <strong>APPEAL JUDGMENT</strong></p> <p>  </p> <p>  </p> <p>  </p> <p> <u><strong>STRYDOM, AJA</strong></u>:</p> <ol><li> <p> This is another salvo fired in a rather longstanding legal battle between the respondents and the appellants. On previous occasions the parties were fortunate to resolve their disputes by settlements which were then made orders of the Court. These settlement agreements were relevant to the proceedings in the Court <em>a quo</em> and the appeal presently before this Court. I will later refer more fully thereto.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> This appeal is against a judgment and orders of the Court <em>a quo</em> whereby the appellants were ordered to comply with the terms of a settlement agreement which was entered into by the parties on the 10<sup>th</sup> November 2006 and which was thereafter made an order of Court.</p> </li> </ol><p>  </p> <ol start="3"><li> <p> The first respondent is a voluntary association representing 104 members out of 110 persons who are lessees of sites in the small holiday resort and fishing village of Wlotzkasbaken, situated some 35 km to the north of Swakopmund. The second respondent, who joined the application in his personal as well as his capacity as a member of the first respondent, is a lessee of one of the mentioned sites.</p> </li> </ol><p>  </p> <ol start="4"><li> <p> The first appellant is an elected body established in terms of the Regional Councils Act, Act 22 of 1992 (the Act).</p> </li> </ol><p>  </p> <ol start="5"><li> <p> The second and third appellants were cited for the interest that they might have in the proceedings and no orders were asked against them save an order for costs if they should oppose the application.</p> </li> </ol><p>  </p> <ol start="6"><li> <p> The history of Wlotzkasbaken, and how it came about that it fell under the jurisdiction of the first appellant, is not in dispute. According to the first respondent the 110 erven were surveyed and laid out during the late 1960’s. During 1972 the town was declared a peri-urban area and no further erven were laid out. Then, under the Local Authorities Act, Act No. 23 of 1992, Wlotzkasbaken was a village until by Government Notice 22 of 1993 it became a settlement area in terms of the Act and was then, in terms of the provisions of the Act, under the jurisdiction of the first appellant.</p> </li> </ol><p>  </p> <ol start="7"><li> <p> The first appellant is tasked by the Act to develop, maintain and provide certain services to areas under its jurisdiction. It is common cause that one of the duties of the first appellant is to develop settlement areas to become townships and to establish local authorities. (See in particular sections 28 to 32 of the Act). This is the process which is presently afoot in regard to Wlotzkasbaken and which has given rise to the disputes between the parties.</p> </li> </ol><p>  </p> <ol start="8"><li> <p> In order to establish a township the Township and Division of Land Ordinance, No. 11 of 1963 (the Ordinance), provides for the steps to be taken in order to achieve such proclamation. In this regard it is common cause that the approval of the Namibia Planning Advisory Board, in terms of sec. 4 of the Ordinance, was already obtained on 1 December 1998. A township layout was completed in terms of sections. 4 to 9 of the Ordinance and application was made to the Townships Board for the establishment of the township of Wlotzkasbaken which, when proclaimed, would consist of 258 erven. This approval was obtained on 21<sup>st</sup> September 1999. On 11 December 2002 a new General Plan for the Township was approved by the Surveyor-General of Namibia. This was done in terms of sec. 11 of the Ordinance.</p> </li> </ol><p>  </p> <ol start="9"><li> <p> What remains was certain amendments to the General Plan which became necessary because alignment of some of the existing erven did not agree with the new outlay and in certain instances access to some of the previous erven was blocked. After the Surveyor-General’s approval of the amended plan sec. 12 of the Ordinance required the opening of a townships register to lay for inspection in the deeds office to be followed by the actual proclamation of the township in terms of sec. 13 of the Ordinance.</p> </li> </ol><p>  </p> <ol start="10"><li> <p> According to Mr. Simon, a town and regional planner, the taking of these steps should not take longer than 3 months. Mr. Stubenrauch, who is likewise a town planner and who was involved in the planning and outlay of Wlotzkasbaken, stated that it would be more realistic to estimate a period of 8 to 12 months to complete these steps.</p> </li> </ol><p>  </p> <ol start="11"><li> <p> Whilst this process was continuing disputes developed between the respondent and the first appellant which led to legal proceedings being instituted by the respondents. The nature of the disputes is not relevant to these proceedings but in due course the matter culminated into the first settlement agreement dated 6<sup>th</sup> November, 2000 (the 2000 agreement).</p> </li> </ol><p>  </p> <ol start="12"><li> <p> This agreement provided as follows:</p> </li> </ol><p>  </p> <p> “The parties hereto have reached a settlement in the following terms which they agree will be made an order of court:</p> <p>  </p> <ol><li> <p> The applicants withdraw the application on the basis set out hereafter and each party bears their own costs, save that the costs as between the applicants and first and third respondents are reserved for determination.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The applicants record that they support the establishment of a township for Wlotzkasbaken.</p> </li> </ol><p>  </p> <ol start="3"><li> <p> The respondents agree that the first applicant’s members will have the right to pre-emption in respect of such members’ site <strong>remaining after the final proclamation of a township and on which such members’ dwelling is situated</strong> at purchase prices to be determined by the second respondent in conjunction with first respondent at the upset prices for vacant erven (determined in accordance with the standard or usual practices adopted by local authorities in Namibia for determining such prices) for the purpose of a public auction or tendering process as required by the Local Authorities Act in respect of the sale of the sites of the township to be established, <strong>should second respondent resolve to sell same.</strong>”<strong> </strong></p> </li> </ol><p> (my emphasis).</p> <p>  </p> <p>  </p> <p>  </p> <ol start="13"><li> <p> Notwithstanding the above agreement further disputes developed which again induced the respondents to make application to the Court. The basis of the disputes is also not relevant to the determination of this case. Again the parties were able to resolve their differences and a second settlement agreement was concluded on the 10<sup>th</sup> November 2006 (the 2006 agreement). These proceedings were seemingly between the same parties who are now before this Court. The first appellant was therein cited as the second respondent and the second appellant as the first respondent.</p> </li> </ol><p>  </p> <ol start="14"><li> <p> The 2006 agreement was also made an order of Court. Its terms were as follows:</p> </li> </ol><p>  </p> <p> “The parties have reached a settlement in the following terms which they agree will be made an order of court:</p> <p>  </p> <ol><li> <p> The applicants withdraw their application on the basis set out hereafter and each party bears their own costs.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The applicants record that they support the establishment of a township for Wlotzkasbaken <strong>and the parties agree that all erven situated at Wlotzkasbaken will be sold upon the applicants having withdrawn their application.</strong></p> </li> </ol><p>  </p> <ol start="3"><li> <p> The applicants record that they accept the proposed township layout of 258 erven (drawing No W97007/TB/FIG9) subject to the following:</p> </li> </ol><p>  </p> <ol start="4"><li> <p> The Wlotzkasbaken Home Owners Association and its members have a pre-emptive right in respect of the erven<strong> upon which their structures are located,</strong> at purchase prices to be determined by the Erongo Regional Council in conjunction with the Minister of Regional, Local Government and Housing at the upset prices for vacant erven (determined in accordance with the standard or usual practices adopted by the local authorities in Namibia for determining such prices) for the purposes of public auctions or tendering processes as require by the Local Authorities Act, and as agreed upon in terms of the Agreement of Settlement concluded during November 2000, which was already made an order of court; and</p> </li> </ol><p>  </p> <ol start="5"><li> <p> The parties agree that the lease agreements entered into by and between the 1<sup>st</sup> applicants’ members and the 2<sup>nd</sup> respondent will be renewed on an annual basis until date of exercise of the right of pre-emption by the Wlotzkasbaken Home Owners Association and its members in accordance with clauses 4 and 6 of this agreement, subject to the terms and conditions as contained in the standard lease agreement of the Erongo Regional Council at the time; and</p> </li> </ol><p>  </p> <ol start="6"><li> <p> The pre-emptive rights of the Wlotzkasbaken Home Owners Association and its members referred to in clause 4 above, shall be exercised by the Wlotzkasbaken Home Owners Association and its members within 90 (ninety) days after receipt of written notification of the purchase price payable.”</p> </li> </ol><p> (my emphasis).</p> <p>  </p> <p>  </p> <ol start="15"><li> <p> Then on the 20<sup>th</sup> July 2007 an advertisement appeared in a local newspaper, <em>Die Republikein</em>, under <em>The Market Place/Die Mark</em>, in which the first appellant extended the following invitation to the public:</p> </li> </ol><p>  </p> <p> “<strong>LEASE OF RESIDENTIAL ERVEN (PLOT)</strong></p> <p> <strong>AT WLOTZKASBAKEN</strong></p> <p>  </p> <p> The Erongo Regional Council as part of its mandate in terms of the Regional Council Act, 1992 (No. 22 of l992) section 28J(i), 31 and 32 has erven for lease at Wlotzkasbaken settlement.</p> <p>  </p> <p> Application forms for lease of plots as well as site plans can be obtained from Erongo Regional Council, contact person.</p> <p>  </p> <p> The Chief Regional Officer</p> <p> Erongo Regional Council</p> <p> Private Bag 5019</p> <p> Swakopmund</p> <p> Tel No: (064) 4105729</p> <p> Fax No: (064) 4105702</p> <p>  </p> <p> Those people who had previously expressed interest are still encouraged to re-apply.</p> <p>  </p> <p> Closing date: 17 August 2007”</p> <p>  </p> <p>  </p> <p>  </p> <ol start="16"><li> <p> The advertisement offered all erven for lease and did not distinguish between those already leased to the first and second respondents and the other vacant sites, nor was the township as yet proclaimed.</p> </li> </ol><p>  </p> <ol start="17"><li> <p> The respondents reacted to this advertisement by sending a letter through their legal practitioner to the legal practitioner of the appellants in which they, <em>inter alia</em>, referred to the 2006 agreement and pointed out that by putting up the 258 erven for lease the appellants were in breach of the said agreement. They required an unequivocal written undertaking from the appellants that they would desist from leasing the erven and, failing such undertaking, the respondents stated that they would lodge an application to enforce the terms of their agreement with the appellants.</p> </li> </ol><p>  </p> <ol start="18"><li> <p> No such undertaking was forthcoming from the appellants. In fact their legal practitioner, by letter dated the 30<sup>th</sup> July 2007, denied that his clients were in breach of the agreement and pointed out that sale of the erven could only take place once the township had been proclaimed. Until such time the appellants were entitled to lease the erven which would in no way prejudice the respondents. The letter confirmed the right of pre-emption of the respondents in regard to sites occupied by them when eventually the erven were sold. The letter ended by warning those persons who had sublet their sites that they had acted in breach of their agreements and reserved the rights of the appellants thereto.</p> </li> </ol><p>  </p> <ol start="19"><li> <p> The respondents were not satisfied with that answer and they thereupon launched the present proceedings, on an urgent basis, wherein they claimed the following:</p> </li> </ol><p>  </p> <ol><li> <p> That the forms and service…</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Issuing a rule <em>nisi</em>, returnable on Friday, 28 September 2007 at 10h00, calling upon respondents or any other interested parties to show cause why an order in the following terms should not be granted:</p> </li> </ol><p>  </p> <ol start="2"><li> <ol><li> <p> That the first respondent be directed to comply with the terms and provisions of the agreement of settlement concluded between applicants and first to third respondents on 10 November 2006 and made an order of the above Honourable Court on 20 November 2006 under case number (P) A 338/2000, annexure “B” to the founding affidavit of Martin Moeller in this matter;</p> </li> </ol></li> </ol><p>  </p> <ol start="2"><li> <ol start="2"><li> <p> That the first respondent be interdicted and restrained from leasing erven in the Wlotzkasbaken settlement pursuant to its invitation of 20 July 2007, annexure “F” to the founding affidavit or a similar such invitation to that effect;</p> </li> </ol></li> </ol><p>  </p> <ol start="2"><li> <ol start="3"><li> <p> Save as authorized by annexure “B” aforesaid and subject thereto, that the first respondent be interdicted and restrained from leasing, or advertising an intention to do so, erven in accordance with the layout plan, annexure “C” to the said affidavit, until it has been amended and the township proclaimed, which would give rise to the establishment of those erven;</p> </li> </ol></li> </ol><p>  </p> <ol start="2"><li> <ol start="4"><li> <p> Save as authorized by annexure “B “ aforesaid and subject thereto, that first respondent is interdicted and restrained from leasing the erven to be established upon proclamation of the township of Wlotzkasbaken by reason of its agreement to sell same, as set out in annexure ”B”</p> </li> <li> <p> That first respondent shall pay the applicants’ costs, and in the event of any of the other respondents or parties opposing this application such respondents shall pay applicants’ costs jointly and severally with first respondent;</p> </li> </ol></li> </ol><p>  </p> <ol start="2"><li> <ol start="6"><li> <p> Grant such further or alternative relief as the Honourable Court may deem fit;</p> </li> </ol></li> </ol><p>  </p> <p> 3. That the relief sought in prayers 2.1 to 2.4 <em>supra</em>, shall operate as an interim interdict, pending the return day of the said rule <em>nisi.</em>”</p> <p>  </p> <p>  </p> <p>  </p> <ol start="20"><li> <p> On this occasion the parties were not able to resolve their disputes and, as previously stated, the matter ran its course and an order, as set out in the Notice of Motion, was granted by the Court <em>a quo </em>in favour of the respondents. By agreement between the parties, which agreement is reflected in the Court’s order of 16 August 2007, the matter was not heard on an urgent basis, with the result that the order made was not in the form of a rule <em>nisi </em>but was a final order made by the Court.</p> </li> </ol><p>  </p> <ol start="21"><li> <p> Counsel for the appellants, Mr. Semenya, assisted by Mr. Hinda, submitted that in order to determine the legal interest of the respondents in the matter one should start with the lease agreement between the parties. In terms thereof the respondents had no more than a right to lease certain designated portions of properties.</p> </li> </ol><p>  </p> <ol start="22"><li> <p> Thereafter the 2000 agreement granted the respondents a right of pre-emption in respect of each such member’s site remaining after the final proclamation of a township and on which such member’s dwelling was situated at a purchase price to be determined as set out in the 2000 agreement.</p> </li> </ol><p>  </p> <ol start="23"><li> <p> Counsel further submitted that the 2006 agreement slightly altered the 2000 agreement in regard to the content of the respondents’ right of pre-emption to erven upon which their structures were located. Counsel submitted that it is significant that the settlement agreement created a legal right to the respondents in respect of a very reduced portion of the leased area. It limited the appellants to those portions on which their structures were located which would be much less than what they were occupying in terms of their agreements of lease.</p> </li> </ol><p>  </p> <ol start="24"><li> <p> Counsel then referred to the advertisement which appeared in <em>Die Republikein</em> and stated that it was the case of the respondents that this advertisement breached their right of pre-emption. This was denied by the appellants.</p> </li> </ol><p>  </p> <ol start="25"><li> <p> Against this background Mr. Semenya argued that the Court <em>a quo</em> as well as the respondents conflated two different concepts in law, with each other. These concepts were the right of pre-emption and the right to exercise an option. With reference to the case of <em>Owsianick v African Consolidated Theaters (Pty) Ltd, </em>1967 (3) SA 310 (AD) counsel explained the difference between a right to pre-emption and an option. On the basis of this difference Counsel submitted that the respondents, who were the holders of pre-emptive rights, could not compel the grantor of those rights, the first appellant, to sell the sites, as the rights so held only arose if and when the grantor thereof should decide to sell. However, in contrast to that, the holder of an option obliged the grantor of the right to sell once the option was exercised.</p> </li> </ol><p>  </p> <ol start="26"><li> <p> According to Counsel for the appellants the respondents would just have to bide their time until and unless the respondents should decide to proclaim the township and then to sell the erven. Until such time they remained leaseholders of the 104 sites which leases, in terms of the settlement agreements, they were entitled to have extended year after year. Regarding clause 2 of the 2006 agreement Counsel argued that the respondents had no legal interest in respect of the unencumbered erven, those were the remaining erven in respect of which the respondents did not hold pre-emptive rights, and, according to Counsel, that clause did therefore not grant them any right to insist on the sale of those erven or, for that matter, any of the erven.</p> </li> </ol><p>  </p> <ol start="27"><li> <p> Mr. Semenya’s argument that the respondents were only trying to protect their pre-emptive rights is not correct. This was made abundantly clear by Mr. Smuts, assisted by Mr. Tötemeyer, when he addressed this Court on behalf of the respondents.</p> </li> </ol><p>  </p> <ol start="28"><li> <p> Mr. Smuts did not have any problem with the law as set out by Mr. Semenya and the differences, pointed out by him, that exist between an option and a pre-emptive right. Counsel however, referred to the two settlement agreements and demonstrated the differences between the 2000 and 2006 agreements. The 2000 agreement was that the respondents' right of pre-emption would arise only if the first appellant decided to sell the erven they occupied. In 2006, however, the parties agreed that all erven situated in Wlotzkasbaken would be sold in consequence of the respondents having withdrawn their application.</p> </li> </ol><p>  </p> <ol start="29"><li> <p> Mr. Smuts submitted that by the 2006 agreement the first appellant had bound itself to sell all the erven and by offering those very erven now for lease clearly evinced an intention not to comply with the 2006 agreement.</p> </li> </ol><p>  </p> <ol start="30"><li> <p> The issues to be decided in this matter seem to me to be twofold, namely:</p> </li> </ol><p>  </p> <p> 1. What the meaning of clause 2 of the 2006 agreement is, seen in the context of the various agreements between the parties and the background as it appears in the documents before the Court, ; and</p> <p>  </p> <p> 2. Whether the advertisement appearing in <em>Die Republikein </em>of 20 July 2007 when the first appellant offered these erven for lease evinces an intention no longer to be bound by the 2006 agreement, or an important part thereof.</p> <p>  </p> <ol start="31"><li> <p> In the recent case of <em>Coopers &amp; Lybrand v Bryant, </em>1995 (3) SA 761 (A) the Appeal Court of South Africa again summarised the rules of construction in the interpretation of documents. At p 767E to 768E the following was stated:</p> </li> </ol><p>  </p> <p> “According to the ‘golden rule’ of interpretation the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument. (<em>Principal Immigration Officer v Hawabu and Another,</em> 1936 AD 26 at 31, <em>Scottish Union &amp; National Insurance Co Ltd v Native Recruiting Corporation Ltd, </em>1934 AD 458 at 465-466, <em>Kalil v Standard Bank of South Africa Ltd, </em>1967 (4) SA 550(A) at 556D)…</p> <p>  </p> <p> The mode of construction should never be to interpret the particular word or phrase in isolation (<em>in vacuo</em>) by itself…..</p> <p>  </p> <p> The correct approach to the application of the ‘golden rule’ of interpretation after having ascertained the literal meaning of the word or phrase in question is, broadly speaking, to have regard:</p> <p>  </p> <ol><li> <p> to the context in which the word or phrase is used with its interrelation to the contract as a whole, including the nature and purpose of the contract, as stated by Rumpff CJ supra;</p> </li> </ol><p>  </p> <ol start="2"><li> <p> to the background circumstances which explain the genesis and purpose of the contract, i.e. to matters probably present to the minds of the parties when they contracted. (<em>Delmas Milling Co Ltd v du Plessis,</em>1955 (3) SA 447 (A) at 454G-H; <em>Van Rensburg en Andere v Taute en Andere, </em>1975 (1) SA 279(A) at 305C-E; <em>Swart’s </em>case <em>supra </em>at 200E-201A &amp; 202C; <em>Shoprite Checkers Ltd v Blue Route Property Managers (Pty) Ltd and Others, </em>1994 (2) SA 172(C) at 1801J).</p> </li> </ol><p>  </p> <ol start="3"><li> <p> to apply extrinsic evidence regarding the surrounding circumstances when the language of the document is on the face of it ambiguous, by considering previous negotiations and correspondence between the parties, subsequent of the parties showing the sense in which they acted on the document, save direct evidence of their own intentions.”</p> </li> </ol><p>  </p> <p>  </p> <p>  </p> <ol><li> <ol start="32"><li> <p> Bearing in mind the "golden rule" as set out above in the <em>Coopers &amp; Lybrand</em>–case, <em>supra</em>, it is clear that the background against which the two settlement agreements were concluded was to ensure the smooth development of a settlement area to a proclaimed township with the advantages which such a development would bring to the township, such as the possibility to convert leasehold into property ownership, better services etc., when in each instance their right of pre-emption arose.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> This is so because a reading of the two agreements shows 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 on the basis of certain formulae as set out in the agreements once the erven were sold.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> It is against this background and in this context that the Court must look at the agreements between the parties.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> It is immediately clear that there are significant differences between the two agreements. Those which are relevant to this case I have highlighted herein before when the agreements were quoted. The first difference deals with the object of the respondents’ right of pre-emption. Except that it forms part of the context against which the Court must interpret the instrument it does not take the matter any further. The second, and more significant difference, relates to how and when this right could be exercised by the respondents.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> In the 2000 agreement the right of pre-emption was to be exercised in regard to the sites occupied by members of the first respondent “should second respondent resolve to sell same.” (As previously pointed out the second respondent in those proceedings has now been sited as the first respondent in the present proceedings.)</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> This agreement therefore accorded with what both Counsel argued in respect of a right of pre-emption namely, that the right could only be exercised if and when the grantor thereof should decide to sell the property which was subject to the right, and the decision to sell was solely within the discretion of the grantor of the right.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> Once the 2000 agreement was made an order of Court the respondents withdrew their application against the appellants.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> The 2006 agreement differed from the 2000 agreement in that the parties then agreed “that all erven situated at Wlotzkasbaken will be sold upon the applicants having withdrawn their application.” (clause 2)</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> In my opinion the grammatical meaning of what is set out above is clear. The reference to “all erven” makes it clear that the parties meant all 258 erven in the new, to be proclaimed township, would be sold. Such interpretation is not repugnant or inconsistent with the agreement as a whole nor does it result in any absurdity. In fact nothing of the sort was pointed out by Mr. Semenya. In anticipation that the erven would be sold, the 2006 agreement also provided for a time frame in which members of the first respondent must exercise their rights of pre-emption, namely 90 days after the first appellant has given notice of its determination of the price of the properties. There was no such determination in the 2000 agreement seemingly because of the uncertainty of when and if the first appellant would decide to sell the sites. In the context of the 2006 agreement the setting of a time frame by the parties upon which the respondents must exercise their rights supports the interpretation of clause 2 of the agreement namely, that the words “all erven……will be sold” must be given its ordinary grammatical meaning.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> Clause 2 of the 2006 agreement clearly is inconsistent, in the above respect, with the provisions of the 2000 agreement and where that is so, effect must be given to the provisions of the later agreement as a deliberate change of language in a document such as the present <em>prima facie </em>imports a change of intention. The 2000 agreement left sale of the erven completely within the discretion of the grantor of the right, i.e. the first appellant. In terms of the 2006 agreement the first appellant was bound to sell upon the withdrawal of the application then instituted by the respondents. (See in this regard <em>Port Elizabeth Municipal Council v Port Elizabeth Electric Tramway Co. Ltd.</em> 1947 (2) SA 1269 (A) at 1279;<em> Minister of Defence v Mwandinghi, </em>1993 NR 63 (SC) and <em>Moodley v Umzinto Town Board,</em> 1998 (2) SA 188 (SCA).)</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> Clause 2, as a term of the 2006 agreement, imposed bilateral duties on the parties, that meant that it required of both parties to perform what was required of them in terms of the agreement. In this instance the duty was on the respondents to first withdraw their application and once this was done the duty was then on the appellants to sell all erven.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> It is common cause that the respondents have performed their obligation and they have withdrawn their application against the appellants. It is therefore now the duty of the appellants to perform their part in terms of their undertaking. No time within which this undertaking must be performed was laid down by the parties. However, where a bilateral contract does not stipulate a time for performance, in this instance the performance by the appellants, the law implies the concept of a reasonable time, as was also pointed out by Mr. Smuts. (See in this regard <em>Willowdene Landowners Ltd v St Martin’s Trust, </em>1971 (1) SA 302 (TPD); <em>Cardoso v Tuckers Land and Development Corporation, </em>1981 (3) SA 54 (WLD),)</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> The above cases set out what should be taken into account to determine, in the peculiar circumstances of each case, what a reasonable time would be. Mr. Simon, the townplanner who deposed on behalf of the respondents, and Mr. Stubenrauch, the townplanner deposing on behalf of the appellants, both gave their estimates. That of Mr. Stubenrauch is somewhat longer than that of Mr. Simon. He estimated that it would still take 8 to 12 months to complete the outstanding steps and to proclaim the township. Although I am not called upon to determine what in the circumstances would be a reasonable time to proclaim the township these estimates are relevant to determine what the parties were contemplating when they entered into the 2006 agreement.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> Bearing in mind what has been set out above, I agree with Mr. Smuts that clause 2 of the 2006 agreement is clear and unambiguous. Its terms created a bilateral agreement where the respondents would withdraw their application, and upon that having occurred, the respondents agreed to sell all the erven situated in the to be proclaimed township of Wlotzkasbaken. It was common cause that this could only happen once the township was proclaimed and it is in this regard that the concept of a reasonable time applies. The period of a reasonable time also only applies to the time necessary to convert the settlement area into a proclaimed township upon which the erven could then be sold.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> What is the effect of this agreement? It was common cause that in terms of the 2006 agreement the respondents have a pre-emptive right to buy the erf or erven on which their structures are located. It however does not end there. By their agreement the parties converted their right of pre-emption, which was, as was correctly argued by both Counsel, uncertain as to when, if ever, it would be exercisable, into certainty, by agreeing that the appellants would in fact sell all erven which would then enable them to exercise their pre-emptive rights.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> I can find nothing repugnant or <em>contra bonos mores</em> in such an agreement nor was it argued that that was the case. Mr. Semenya’s argument that the 2000 and 2006 agreements only established for the appellants a bare pre-emptive right must be rejected for the above reasons.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> The appellants' counsel however argued that in regard to the unencumbered erven, those are the erven not subject to a pre-emptive right, the agreement cannot require of the appellants a duty to sell. Counsel argued that the respondents have no legal interest in those erven which would enable them to enforce their bargain.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> It is not quite clear to me what Counsel meant by the words "legal interest". No authority was quoted to us which would support such an argument. If thereby is meant that an enforceable contract could only come into being when such legal interest exists, be it in the form of some or other consideration or underlying right, then I must differ.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> As far back as 1919 the South African Appeal Court held in the case of <em>Conradie v Rossouw, </em>1919 AD 279 at 320:</p> </li> </ol></li> </ol><p>  </p> <p> “According to our law if two or more persons, of sound mind and capable of contracting, enter into a lawful agreement, a valid agreement arises between them enforceable by action. The agreement may be for the benefit of the one of them or of both (Grotius 3.6.2). The promise must have been made with the intention that it should be accepted (Grotius 3.1.48); according to Voet the agreement must have been entered into <em>serio ac deliberato animo</em>. And this is what is meant by saying that the only element that our law requires for a valid contract is <em>consensus</em>, naturally within proper limits – it should be <em>in</em> or <em>de re licita ac honesta.</em>”</p> <p>  </p> <p> (See further <em>Bank of Lisbon and South Africa Ltd v De Ornelas and Another,</em>1988(3) SA 580 (AD) at 599B and <em>Meyer v Iscor Pension Fund, </em>2003 (2) SA 715 (SCA) at 733E).</p> <p>  </p> <p>  </p> <p>  </p> <ol><li> <ol start="32"><li> <p> In my opinion clause 2 of the 2006 agreement complied fully with what was stated in the <em>Conradie</em>-case, <em>supra,</em> by De Villiers, AJA. It was never argued that there was no consensus amongst the parties or that they did not contract with a serious and deliberate intention. It could also not be said that the clause was contrary to public policy. It is a natural consequence that erven in a newly proclaimed township will be sold. The selling of the erven would also be in the interest of the respondents as it would speed up the proclamation of the township which in turn would enable them to acquire title in such property as is set out in the 2006 agreement. The sale of all erven could in time open the door for the establishment of a local authority with powers to levy rates and taxes and provide proper services.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> I therefore agree with Mr. Smuts that clause 2 of the 2006 agreement constitutes a valid and enforceable bilateral agreement namely that upon withdrawal of the application the appellants were obliged to sell all erven in the proclaimed township of Wlotzkasbaken, of course subject to the constraints of a reasonable time in which to proclaim the township. The Court <em>a quo</em> correctly found that the respondents’ justiciable right arose out of the 2006 agreement.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> Once the terms of the agreement are determined the Court must now consider whether the advertisement whereby the public was invited to lease erven in Wlotzkasbaken constituted a breach of the agreement between the parties.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> Mr. Smuts submitted that the first appellant committed an anticipatory breach whereby an intention was evinced by the first appellant to be no longer bound by the 2006 agreement. In this regard Counsel relied on the case of <em>Tuckers Land and Development Corporation (Pty) Ltd. v Hovis, </em>1980 (1) SA 645 (A).</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> This case was further explained by the Constitutional Court of South Africa in the case of <em>Barkhuizen v Napier, </em>2007 (5) SA 323 (CC) which confirmed that good faith underlies our law of contract. The following was stated on 346 – 347:</p> </li> </ol></li> </ol><p>  </p> <p> “[80] The requirement of good faith is not unknown to our common law of contract. It underlies contractual relations in our law. The concept of good faith was considered by the Appellate Division in <em>Tuckers Land and Development Corporation v Hovis, </em>albeit in the context of whether the doctrine of anticipatory breach should be grafted in our law. The Court was concerned, in particular, with whether the doctrine of anticipatory breach relates to a breach of an existing obligation. The Court observed that in Roman law courts generally had wide powers to complement or restrict the duties of parties, and to imply contractual terms in accordance with the requirement of justice, reasonableness and fairness. The concepts of justice, reasonableness and fairness constitute good faith…”</p> <p>  </p> <p>  </p> <p> The Court then quoted with approval the following excerpt from the <em>Tuckers Land–</em>case, namely:</p> <p>  </p> <p> “[81] It should be said that it is now, and has been for some time, felt in our domain, no doubt under the influence of the English law, that in all fairness there should be a duty upon a promisor not to commit an anticipatory breach of contract, and such a duty has in fact often been enforced by our Courts. It would be consonant with the history of our law, and also legal principle, to construe this as an application of the wide jurisdiction to imply terms conferred upon by the Roman law in respect of the <em>judiciae bonai fidei.</em> It would not be inapt to say, elliptically, that the duty flows from the requirement of <em>bona fides</em> to which our contracts are subject, and that such duty is implied in law and not in fact.”</p> <p>  </p> <p>  </p> <p>  </p> <ol><li> <ol start="32"><li> <p> Mr. Semenya conceded that to sell property does not include the leasing thereof. It was never, in my opinion, contemplated by the parties, when the 2006 agreement was concluded, that the sites, in the to be proclaimed township, would be leased. The obligation undertaken by the first appellant in terms of the 2006 agreement was to sell all erven. This meant, in this particular instance, that they would take all necessary steps to proclaim the township in order to fulfill their obligation to sell the erven and that they would do so within a reasonable time. The invitation to the public to lease the said erven was clearly not such a step and was in direct conflict with what first appellant had undertaken to do. I agree with Mr. Smuts that the right acquired by the respondents in terms of their agreement with the appellants was the right to have all the erven sold once the township was proclaimed. The intention to lease those erven was a breach of the right of the respondents to have the erven sold.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> The intention of the first appellant not to comply with their obligation was made clear by the fact that since the 2006 agreement no further steps were taken to have the township proclaimed. The reason for this is to be found in the affidavit of the deponent on behalf of the first appellant who candidly stated that it was no longer a priority of the first appellant to proclaim Wlotzkasbaken as a township as it only ranks fourth after three other settlement areas. It was furthermore pointed out by Mr. Smuts that it was now contended by Mr. //Garoeb that it was never the intention of the parties that all erven should be put up for sale.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> In regard to the test which a Court should apply in order to establish an anticipatory breach of the contract, the following was stated in the <em>Tuckers Land-</em>case, <em>supra</em>, at p. 653B – E:</p> </li> </ol></li> </ol><p>  </p> <p> “What the proper test is to be applied to the promisor’s conduct is not obvious, as there appear to be, conflicting <em>dicta</em> in this regard. This Court, however, seems to have gravitated in the direction of an objective test based upon the reasonable expectation of the promisee. In <em>Van Rooyen v Minister van Openbare Werke en Gemeenskapsbou, </em>1978 (2) SA 835(A) at 845 <em>in fine-</em>846A it is pointed out that ‘om ‘n ooreenkoms te repudieer, hoef daar nie ……’n subjektiewe bedoeling te wees om ‘n einde aan die ooreenkoms te maak nie’.</p> <p>  </p> <p> In <em>Ponisamy and Another v Versailles Estates (Pty) Ltd, </em>1973 (1) SA 372(A) at 387B the following passage from the judgment of Devlin J in <em>Universal Cargo Carriers Corporation v Citati, </em>(1957) 2 QB 401 at 436 is cited with approval:</p> <p>  </p> <p> ‘A renunciation can be made either by words or by conduct, provided it is clearly made. It is often put that the party renunciating must ‘evince an intention’ not to go on with the contract. The test of whether an intention is sufficiently evinced by conduct is whether the party renunciating has acted in such a way as to lead a reasonable person to the conclusion that he does not intend to fulfill his part of the contract.’</p> <p>  </p> <p> The test here propounded is both practicable and fair, and this is the test which I propose to apply in the present case.”</p> <p>  </p> <p> (‘to repudiate an agreement, there need not be…… a subjective intention to bring an end to the agreement.’ - my free translation of the afrikaans excerpt from the <em>Van Rooyen</em>-case, referred to above.)</p> <p>  </p> <p>  </p> <ol><li> <ol start="32"><li> <p> The full excerpt of what was said by Rabie JA (as he then was) in the <em>Van Rooyen-</em>case, <em>supra</em>, at p 845 -846 is the following:</p> </li> </ol></li> </ol><p>  </p> <p> “Om ‘n ooreenkoms te repudieer, hoef daar nie, soos in die aangehaalde woorde uit <em>Freeth v Burr</em> te kenne gegee word, ‘n subjektiewe bedoeling te wees om ‘n einde aan die ooreenkoms te maak nie. Waar ‘n party, bv, weier om ‘n belangrike bepaling van ‘n ooreenkoms na te kom, sou sy optrede regtens op ‘n repudiering van die ooreenkoms kon neerkom, al sou hy ook meen dat hy sy verpligtinge behoorlik nakom. (Kyk De Wet en Yeats <em>Kontraktereg en Handelsreg </em>3de uitg 0p 117).”</p> <p>  </p> <p> (To repudiate an agreement, there need not be, as was stated in the words cited from <em>Freeth v Burr </em>, that there be a subjective intention to bring an end to the agreement. Where a party, e.g., refuses to comply with an important term of the agreement, his conduct could, legally speaking, amount to a repudiation of the agreement, even if he was of the opinion that he properly complied with his obligations). – my free translation.</p> <p>  </p> <p>  </p> <p>  </p> <ol><li> <ol start="32"><li> <p> The decision of the first appellant to lease the sites is in conflict with their undertaking to sell all erven upon withdrawal of the application against them. The conduct of the first appellant was such that it would lead a reasonable person to the conclusion that it evinced an intention not to fulfill its part of the contract.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> As was found by the Court <em>a quo</em> effect should be given to the rule <em>pacta sunt servanda</em> and to allow the appellants to renege on their contract would be “stultifying and subverting the principle of the rule of law, which is firmly imbedded in Namibia’s constitutionalism…..”</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> I have therefore come to the conclusion that the appeal should be dismissed and the following order is made:</p> </li> </ol></li> </ol><p>  </p> <ol><li> <p> The appellants’ appeal is dismissed with costs, such costs to include the costs of one instructing and two instructed counsel.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Such costs to be paid jointly and severally by the appellants, the one paying the other to be absolved.</p> </li> </ol><p>  </p> <p>  </p> <p> ________________________</p> <p> <strong>STRYDOM, AJA</strong></p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> I agree.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> ________________________</p> <p> <strong>CHOMBA, AJA</strong></p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> I agree.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> ________________________</p> <p> <strong>MTAMBANENGWE, AJA</strong></p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> <strong>Counsel on behalf of the 1</strong><sup><strong>st</strong></sup><strong> appellant</strong>: MR. I A M SEMENYA, SC</p> <p> Assisted by: Mr. G S Hinda</p> <p>  </p> <p> Instructed by: Shikongo Law Chambers</p> <p>  </p> <p>  </p> <p> <strong>Counsel on behalf of the 2</strong><sup><strong>nd</strong></sup><strong> and 3</strong><sup><strong>rd</strong></sup><strong> appellants</strong> No appearance</p> <p>  </p> <p> Instructed by: The Government Attorney</p> <p>  </p> <p> <strong>Counsel on behalf of the 1</strong><sup><strong>st</strong></sup><strong> and 2</strong><sup><strong>nd</strong></sup><strong> respondents:</strong> Mr. D F Smuts, SC</p> <p> Assisted by: Mr. R Tötemeyer</p> <p>  </p> <p> Instructed by: Diekmann Associates</p> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-f991aa852bcd596154ee406e60b249c557ce75a876ce0ae2cf644f40d014a54b"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p> IN THE SUPREME COURT OF NAMIBIA</p> <p> <strong>REPORTABLE</strong></p> <p> <strong>CASE NO.: SA 6/2008</strong></p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> <strong>IN THE SUPREME COURT OF NAMIBIA</strong></p> <p>  </p> <p>  </p> <p> In the matter between:</p> <p>  </p> <p>  </p> <p> <strong>THE ERONGO REGIONAL COUNCIL FIRST APPELLANT</strong></p> <p>  </p> <p> <strong>THE MINISTER OF REGIONAL, </strong></p> <p> <strong>LOCAL GOVERNMENT AND HOUSING SECOND APPELLANT</strong></p> <p>  </p> <p> <strong>THE CHAIRPERSON OF </strong></p> <p> <strong>THE TOWNSHIPS BOARD THIRD APPELLANT</strong></p> <p>  </p> <p>  </p> <p> and</p> <p>  </p> <p>  </p> <p> <strong>WLOTZKASBAKEN HOME </strong></p> <p> <strong>OWNERS ASSOCIATION FIRST RESPONDENT </strong></p> <p>  </p> <p> <strong>KERRY SEAN McNAMARA SECOND RESPONDENT</strong></p> <p>  </p> <p>  </p> <p>  </p> <p> CORAM: Strydom, AJA, Chomba, AJA and Mtambanengwe, AJA.</p> <p>  </p> <p> Heard on: 2008/10/16</p> <p>  </p> <p> Delivered: 2008/03/17</p> <p>  </p> <p>  </p> <p> <strong>APPEAL JUDGMENT</strong></p> <p>  </p> <p>  </p> <p>  </p> <p> <u><strong>STRYDOM, AJA</strong></u>:</p> <ol><li> <p> This is another salvo fired in a rather longstanding legal battle between the respondents and the appellants. On previous occasions the parties were fortunate to resolve their disputes by settlements which were then made orders of the Court. These settlement agreements were relevant to the proceedings in the Court <em>a quo</em> and the appeal presently before this Court. I will later refer more fully thereto.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> This appeal is against a judgment and orders of the Court <em>a quo</em> whereby the appellants were ordered to comply with the terms of a settlement agreement which was entered into by the parties on the 10<sup>th</sup> November 2006 and which was thereafter made an order of Court.</p> </li> </ol><p>  </p> <ol start="3"><li> <p> The first respondent is a voluntary association representing 104 members out of 110 persons who are lessees of sites in the small holiday resort and fishing village of Wlotzkasbaken, situated some 35 km to the north of Swakopmund. The second respondent, who joined the application in his personal as well as his capacity as a member of the first respondent, is a lessee of one of the mentioned sites.</p> </li> </ol><p>  </p> <ol start="4"><li> <p> The first appellant is an elected body established in terms of the Regional Councils Act, Act 22 of 1992 (the Act).</p> </li> </ol><p>  </p> <ol start="5"><li> <p> The second and third appellants were cited for the interest that they might have in the proceedings and no orders were asked against them save an order for costs if they should oppose the application.</p> </li> </ol><p>  </p> <ol start="6"><li> <p> The history of Wlotzkasbaken, and how it came about that it fell under the jurisdiction of the first appellant, is not in dispute. According to the first respondent the 110 erven were surveyed and laid out during the late 1960’s. During 1972 the town was declared a peri-urban area and no further erven were laid out. Then, under the Local Authorities Act, Act No. 23 of 1992, Wlotzkasbaken was a village until by Government Notice 22 of 1993 it became a settlement area in terms of the Act and was then, in terms of the provisions of the Act, under the jurisdiction of the first appellant.</p> </li> </ol><p>  </p> <ol start="7"><li> <p> The first appellant is tasked by the Act to develop, maintain and provide certain services to areas under its jurisdiction. It is common cause that one of the duties of the first appellant is to develop settlement areas to become townships and to establish local authorities. (See in particular sections 28 to 32 of the Act). This is the process which is presently afoot in regard to Wlotzkasbaken and which has given rise to the disputes between the parties.</p> </li> </ol><p>  </p> <ol start="8"><li> <p> In order to establish a township the Township and Division of Land Ordinance, No. 11 of 1963 (the Ordinance), provides for the steps to be taken in order to achieve such proclamation. In this regard it is common cause that the approval of the Namibia Planning Advisory Board, in terms of sec. 4 of the Ordinance, was already obtained on 1 December 1998. A township layout was completed in terms of sections. 4 to 9 of the Ordinance and application was made to the Townships Board for the establishment of the township of Wlotzkasbaken which, when proclaimed, would consist of 258 erven. This approval was obtained on 21<sup>st</sup> September 1999. On 11 December 2002 a new General Plan for the Township was approved by the Surveyor-General of Namibia. This was done in terms of sec. 11 of the Ordinance.</p> </li> </ol><p>  </p> <ol start="9"><li> <p> What remains was certain amendments to the General Plan which became necessary because alignment of some of the existing erven did not agree with the new outlay and in certain instances access to some of the previous erven was blocked. After the Surveyor-General’s approval of the amended plan sec. 12 of the Ordinance required the opening of a townships register to lay for inspection in the deeds office to be followed by the actual proclamation of the township in terms of sec. 13 of the Ordinance.</p> </li> </ol><p>  </p> <ol start="10"><li> <p> According to Mr. Simon, a town and regional planner, the taking of these steps should not take longer than 3 months. Mr. Stubenrauch, who is likewise a town planner and who was involved in the planning and outlay of Wlotzkasbaken, stated that it would be more realistic to estimate a period of 8 to 12 months to complete these steps.</p> </li> </ol><p>  </p> <ol start="11"><li> <p> Whilst this process was continuing disputes developed between the respondent and the first appellant which led to legal proceedings being instituted by the respondents. The nature of the disputes is not relevant to these proceedings but in due course the matter culminated into the first settlement agreement dated 6<sup>th</sup> November, 2000 (the 2000 agreement).</p> </li> </ol><p>  </p> <ol start="12"><li> <p> This agreement provided as follows:</p> </li> </ol><p>  </p> <p> “The parties hereto have reached a settlement in the following terms which they agree will be made an order of court:</p> <p>  </p> <ol><li> <p> The applicants withdraw the application on the basis set out hereafter and each party bears their own costs, save that the costs as between the applicants and first and third respondents are reserved for determination.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The applicants record that they support the establishment of a township for Wlotzkasbaken.</p> </li> </ol><p>  </p> <ol start="3"><li> <p> The respondents agree that the first applicant’s members will have the right to pre-emption in respect of such members’ site <strong>remaining after the final proclamation of a township and on which such members’ dwelling is situated</strong> at purchase prices to be determined by the second respondent in conjunction with first respondent at the upset prices for vacant erven (determined in accordance with the standard or usual practices adopted by local authorities in Namibia for determining such prices) for the purpose of a public auction or tendering process as required by the Local Authorities Act in respect of the sale of the sites of the township to be established, <strong>should second respondent resolve to sell same.</strong>”<strong> </strong></p> </li> </ol><p> (my emphasis).</p> <p>  </p> <p>  </p> <p>  </p> <ol start="13"><li> <p> Notwithstanding the above agreement further disputes developed which again induced the respondents to make application to the Court. The basis of the disputes is also not relevant to the determination of this case. Again the parties were able to resolve their differences and a second settlement agreement was concluded on the 10<sup>th</sup> November 2006 (the 2006 agreement). These proceedings were seemingly between the same parties who are now before this Court. The first appellant was therein cited as the second respondent and the second appellant as the first respondent.</p> </li> </ol><p>  </p> <ol start="14"><li> <p> The 2006 agreement was also made an order of Court. Its terms were as follows:</p> </li> </ol><p>  </p> <p> “The parties have reached a settlement in the following terms which they agree will be made an order of court:</p> <p>  </p> <ol><li> <p> The applicants withdraw their application on the basis set out hereafter and each party bears their own costs.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> The applicants record that they support the establishment of a township for Wlotzkasbaken <strong>and the parties agree that all erven situated at Wlotzkasbaken will be sold upon the applicants having withdrawn their application.</strong></p> </li> </ol><p>  </p> <ol start="3"><li> <p> The applicants record that they accept the proposed township layout of 258 erven (drawing No W97007/TB/FIG9) subject to the following:</p> </li> </ol><p>  </p> <ol start="4"><li> <p> The Wlotzkasbaken Home Owners Association and its members have a pre-emptive right in respect of the erven<strong> upon which their structures are located,</strong> at purchase prices to be determined by the Erongo Regional Council in conjunction with the Minister of Regional, Local Government and Housing at the upset prices for vacant erven (determined in accordance with the standard or usual practices adopted by the local authorities in Namibia for determining such prices) for the purposes of public auctions or tendering processes as require by the Local Authorities Act, and as agreed upon in terms of the Agreement of Settlement concluded during November 2000, which was already made an order of court; and</p> </li> </ol><p>  </p> <ol start="5"><li> <p> The parties agree that the lease agreements entered into by and between the 1<sup>st</sup> applicants’ members and the 2<sup>nd</sup> respondent will be renewed on an annual basis until date of exercise of the right of pre-emption by the Wlotzkasbaken Home Owners Association and its members in accordance with clauses 4 and 6 of this agreement, subject to the terms and conditions as contained in the standard lease agreement of the Erongo Regional Council at the time; and</p> </li> </ol><p>  </p> <ol start="6"><li> <p> The pre-emptive rights of the Wlotzkasbaken Home Owners Association and its members referred to in clause 4 above, shall be exercised by the Wlotzkasbaken Home Owners Association and its members within 90 (ninety) days after receipt of written notification of the purchase price payable.”</p> </li> </ol><p> (my emphasis).</p> <p>  </p> <p>  </p> <ol start="15"><li> <p> Then on the 20<sup>th</sup> July 2007 an advertisement appeared in a local newspaper, <em>Die Republikein</em>, under <em>The Market Place/Die Mark</em>, in which the first appellant extended the following invitation to the public:</p> </li> </ol><p>  </p> <p> “<strong>LEASE OF RESIDENTIAL ERVEN (PLOT)</strong></p> <p> <strong>AT WLOTZKASBAKEN</strong></p> <p>  </p> <p> The Erongo Regional Council as part of its mandate in terms of the Regional Council Act, 1992 (No. 22 of l992) section 28J(i), 31 and 32 has erven for lease at Wlotzkasbaken settlement.</p> <p>  </p> <p> Application forms for lease of plots as well as site plans can be obtained from Erongo Regional Council, contact person.</p> <p>  </p> <p> The Chief Regional Officer</p> <p> Erongo Regional Council</p> <p> Private Bag 5019</p> <p> Swakopmund</p> <p> Tel No: (064) 4105729</p> <p> Fax No: (064) 4105702</p> <p>  </p> <p> Those people who had previously expressed interest are still encouraged to re-apply.</p> <p>  </p> <p> Closing date: 17 August 2007”</p> <p>  </p> <p>  </p> <p>  </p> <ol start="16"><li> <p> The advertisement offered all erven for lease and did not distinguish between those already leased to the first and second respondents and the other vacant sites, nor was the township as yet proclaimed.</p> </li> </ol><p>  </p> <ol start="17"><li> <p> The respondents reacted to this advertisement by sending a letter through their legal practitioner to the legal practitioner of the appellants in which they, <em>inter alia</em>, referred to the 2006 agreement and pointed out that by putting up the 258 erven for lease the appellants were in breach of the said agreement. They required an unequivocal written undertaking from the appellants that they would desist from leasing the erven and, failing such undertaking, the respondents stated that they would lodge an application to enforce the terms of their agreement with the appellants.</p> </li> </ol><p>  </p> <ol start="18"><li> <p> No such undertaking was forthcoming from the appellants. In fact their legal practitioner, by letter dated the 30<sup>th</sup> July 2007, denied that his clients were in breach of the agreement and pointed out that sale of the erven could only take place once the township had been proclaimed. Until such time the appellants were entitled to lease the erven which would in no way prejudice the respondents. The letter confirmed the right of pre-emption of the respondents in regard to sites occupied by them when eventually the erven were sold. The letter ended by warning those persons who had sublet their sites that they had acted in breach of their agreements and reserved the rights of the appellants thereto.</p> </li> </ol><p>  </p> <ol start="19"><li> <p> The respondents were not satisfied with that answer and they thereupon launched the present proceedings, on an urgent basis, wherein they claimed the following:</p> </li> </ol><p>  </p> <ol><li> <p> That the forms and service…</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Issuing a rule <em>nisi</em>, returnable on Friday, 28 September 2007 at 10h00, calling upon respondents or any other interested parties to show cause why an order in the following terms should not be granted:</p> </li> </ol><p>  </p> <ol start="2"><li> <ol><li> <p> That the first respondent be directed to comply with the terms and provisions of the agreement of settlement concluded between applicants and first to third respondents on 10 November 2006 and made an order of the above Honourable Court on 20 November 2006 under case number (P) A 338/2000, annexure “B” to the founding affidavit of Martin Moeller in this matter;</p> </li> </ol></li> </ol><p>  </p> <ol start="2"><li> <ol start="2"><li> <p> That the first respondent be interdicted and restrained from leasing erven in the Wlotzkasbaken settlement pursuant to its invitation of 20 July 2007, annexure “F” to the founding affidavit or a similar such invitation to that effect;</p> </li> </ol></li> </ol><p>  </p> <ol start="2"><li> <ol start="3"><li> <p> Save as authorized by annexure “B” aforesaid and subject thereto, that the first respondent be interdicted and restrained from leasing, or advertising an intention to do so, erven in accordance with the layout plan, annexure “C” to the said affidavit, until it has been amended and the township proclaimed, which would give rise to the establishment of those erven;</p> </li> </ol></li> </ol><p>  </p> <ol start="2"><li> <ol start="4"><li> <p> Save as authorized by annexure “B “ aforesaid and subject thereto, that first respondent is interdicted and restrained from leasing the erven to be established upon proclamation of the township of Wlotzkasbaken by reason of its agreement to sell same, as set out in annexure ”B”</p> </li> <li> <p> That first respondent shall pay the applicants’ costs, and in the event of any of the other respondents or parties opposing this application such respondents shall pay applicants’ costs jointly and severally with first respondent;</p> </li> </ol></li> </ol><p>  </p> <ol start="2"><li> <ol start="6"><li> <p> Grant such further or alternative relief as the Honourable Court may deem fit;</p> </li> </ol></li> </ol><p>  </p> <p> 3. That the relief sought in prayers 2.1 to 2.4 <em>supra</em>, shall operate as an interim interdict, pending the return day of the said rule <em>nisi.</em>”</p> <p>  </p> <p>  </p> <p>  </p> <ol start="20"><li> <p> On this occasion the parties were not able to resolve their disputes and, as previously stated, the matter ran its course and an order, as set out in the Notice of Motion, was granted by the Court <em>a quo </em>in favour of the respondents. By agreement between the parties, which agreement is reflected in the Court’s order of 16 August 2007, the matter was not heard on an urgent basis, with the result that the order made was not in the form of a rule <em>nisi </em>but was a final order made by the Court.</p> </li> </ol><p>  </p> <ol start="21"><li> <p> Counsel for the appellants, Mr. Semenya, assisted by Mr. Hinda, submitted that in order to determine the legal interest of the respondents in the matter one should start with the lease agreement between the parties. In terms thereof the respondents had no more than a right to lease certain designated portions of properties.</p> </li> </ol><p>  </p> <ol start="22"><li> <p> Thereafter the 2000 agreement granted the respondents a right of pre-emption in respect of each such member’s site remaining after the final proclamation of a township and on which such member’s dwelling was situated at a purchase price to be determined as set out in the 2000 agreement.</p> </li> </ol><p>  </p> <ol start="23"><li> <p> Counsel further submitted that the 2006 agreement slightly altered the 2000 agreement in regard to the content of the respondents’ right of pre-emption to erven upon which their structures were located. Counsel submitted that it is significant that the settlement agreement created a legal right to the respondents in respect of a very reduced portion of the leased area. It limited the appellants to those portions on which their structures were located which would be much less than what they were occupying in terms of their agreements of lease.</p> </li> </ol><p>  </p> <ol start="24"><li> <p> Counsel then referred to the advertisement which appeared in <em>Die Republikein</em> and stated that it was the case of the respondents that this advertisement breached their right of pre-emption. This was denied by the appellants.</p> </li> </ol><p>  </p> <ol start="25"><li> <p> Against this background Mr. Semenya argued that the Court <em>a quo</em> as well as the respondents conflated two different concepts in law, with each other. These concepts were the right of pre-emption and the right to exercise an option. With reference to the case of <em>Owsianick v African Consolidated Theaters (Pty) Ltd, </em>1967 (3) SA 310 (AD) counsel explained the difference between a right to pre-emption and an option. On the basis of this difference Counsel submitted that the respondents, who were the holders of pre-emptive rights, could not compel the grantor of those rights, the first appellant, to sell the sites, as the rights so held only arose if and when the grantor thereof should decide to sell. However, in contrast to that, the holder of an option obliged the grantor of the right to sell once the option was exercised.</p> </li> </ol><p>  </p> <ol start="26"><li> <p> According to Counsel for the appellants the respondents would just have to bide their time until and unless the respondents should decide to proclaim the township and then to sell the erven. Until such time they remained leaseholders of the 104 sites which leases, in terms of the settlement agreements, they were entitled to have extended year after year. Regarding clause 2 of the 2006 agreement Counsel argued that the respondents had no legal interest in respect of the unencumbered erven, those were the remaining erven in respect of which the respondents did not hold pre-emptive rights, and, according to Counsel, that clause did therefore not grant them any right to insist on the sale of those erven or, for that matter, any of the erven.</p> </li> </ol><p>  </p> <ol start="27"><li> <p> Mr. Semenya’s argument that the respondents were only trying to protect their pre-emptive rights is not correct. This was made abundantly clear by Mr. Smuts, assisted by Mr. Tötemeyer, when he addressed this Court on behalf of the respondents.</p> </li> </ol><p>  </p> <ol start="28"><li> <p> Mr. Smuts did not have any problem with the law as set out by Mr. Semenya and the differences, pointed out by him, that exist between an option and a pre-emptive right. Counsel however, referred to the two settlement agreements and demonstrated the differences between the 2000 and 2006 agreements. The 2000 agreement was that the respondents' right of pre-emption would arise only if the first appellant decided to sell the erven they occupied. In 2006, however, the parties agreed that all erven situated in Wlotzkasbaken would be sold in consequence of the respondents having withdrawn their application.</p> </li> </ol><p>  </p> <ol start="29"><li> <p> Mr. Smuts submitted that by the 2006 agreement the first appellant had bound itself to sell all the erven and by offering those very erven now for lease clearly evinced an intention not to comply with the 2006 agreement.</p> </li> </ol><p>  </p> <ol start="30"><li> <p> The issues to be decided in this matter seem to me to be twofold, namely:</p> </li> </ol><p>  </p> <p> 1. What the meaning of clause 2 of the 2006 agreement is, seen in the context of the various agreements between the parties and the background as it appears in the documents before the Court, ; and</p> <p>  </p> <p> 2. Whether the advertisement appearing in <em>Die Republikein </em>of 20 July 2007 when the first appellant offered these erven for lease evinces an intention no longer to be bound by the 2006 agreement, or an important part thereof.</p> <p>  </p> <ol start="31"><li> <p> In the recent case of <em>Coopers &amp; Lybrand v Bryant, </em>1995 (3) SA 761 (A) the Appeal Court of South Africa again summarised the rules of construction in the interpretation of documents. At p 767E to 768E the following was stated:</p> </li> </ol><p>  </p> <p> “According to the ‘golden rule’ of interpretation the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument. (<em>Principal Immigration Officer v Hawabu and Another,</em> 1936 AD 26 at 31, <em>Scottish Union &amp; National Insurance Co Ltd v Native Recruiting Corporation Ltd, </em>1934 AD 458 at 465-466, <em>Kalil v Standard Bank of South Africa Ltd, </em>1967 (4) SA 550(A) at 556D)…</p> <p>  </p> <p> The mode of construction should never be to interpret the particular word or phrase in isolation (<em>in vacuo</em>) by itself…..</p> <p>  </p> <p> The correct approach to the application of the ‘golden rule’ of interpretation after having ascertained the literal meaning of the word or phrase in question is, broadly speaking, to have regard:</p> <p>  </p> <ol><li> <p> to the context in which the word or phrase is used with its interrelation to the contract as a whole, including the nature and purpose of the contract, as stated by Rumpff CJ supra;</p> </li> </ol><p>  </p> <ol start="2"><li> <p> to the background circumstances which explain the genesis and purpose of the contract, i.e. to matters probably present to the minds of the parties when they contracted. (<em>Delmas Milling Co Ltd v du Plessis,</em>1955 (3) SA 447 (A) at 454G-H; <em>Van Rensburg en Andere v Taute en Andere, </em>1975 (1) SA 279(A) at 305C-E; <em>Swart’s </em>case <em>supra </em>at 200E-201A &amp; 202C; <em>Shoprite Checkers Ltd v Blue Route Property Managers (Pty) Ltd and Others, </em>1994 (2) SA 172(C) at 1801J).</p> </li> </ol><p>  </p> <ol start="3"><li> <p> to apply extrinsic evidence regarding the surrounding circumstances when the language of the document is on the face of it ambiguous, by considering previous negotiations and correspondence between the parties, subsequent of the parties showing the sense in which they acted on the document, save direct evidence of their own intentions.”</p> </li> </ol><p>  </p> <p>  </p> <p>  </p> <ol><li> <ol start="32"><li> <p> Bearing in mind the "golden rule" as set out above in the <em>Coopers &amp; Lybrand</em>–case, <em>supra</em>, it is clear that the background against which the two settlement agreements were concluded was to ensure the smooth development of a settlement area to a proclaimed township with the advantages which such a development would bring to the township, such as the possibility to convert leasehold into property ownership, better services etc., when in each instance their right of pre-emption arose.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> This is so because a reading of the two agreements shows 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 on the basis of certain formulae as set out in the agreements once the erven were sold.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> It is against this background and in this context that the Court must look at the agreements between the parties.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> It is immediately clear that there are significant differences between the two agreements. Those which are relevant to this case I have highlighted herein before when the agreements were quoted. The first difference deals with the object of the respondents’ right of pre-emption. Except that it forms part of the context against which the Court must interpret the instrument it does not take the matter any further. The second, and more significant difference, relates to how and when this right could be exercised by the respondents.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> In the 2000 agreement the right of pre-emption was to be exercised in regard to the sites occupied by members of the first respondent “should second respondent resolve to sell same.” (As previously pointed out the second respondent in those proceedings has now been sited as the first respondent in the present proceedings.)</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> This agreement therefore accorded with what both Counsel argued in respect of a right of pre-emption namely, that the right could only be exercised if and when the grantor thereof should decide to sell the property which was subject to the right, and the decision to sell was solely within the discretion of the grantor of the right.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> Once the 2000 agreement was made an order of Court the respondents withdrew their application against the appellants.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> The 2006 agreement differed from the 2000 agreement in that the parties then agreed “that all erven situated at Wlotzkasbaken will be sold upon the applicants having withdrawn their application.” (clause 2)</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> In my opinion the grammatical meaning of what is set out above is clear. The reference to “all erven” makes it clear that the parties meant all 258 erven in the new, to be proclaimed township, would be sold. Such interpretation is not repugnant or inconsistent with the agreement as a whole nor does it result in any absurdity. In fact nothing of the sort was pointed out by Mr. Semenya. In anticipation that the erven would be sold, the 2006 agreement also provided for a time frame in which members of the first respondent must exercise their rights of pre-emption, namely 90 days after the first appellant has given notice of its determination of the price of the properties. There was no such determination in the 2000 agreement seemingly because of the uncertainty of when and if the first appellant would decide to sell the sites. In the context of the 2006 agreement the setting of a time frame by the parties upon which the respondents must exercise their rights supports the interpretation of clause 2 of the agreement namely, that the words “all erven……will be sold” must be given its ordinary grammatical meaning.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> Clause 2 of the 2006 agreement clearly is inconsistent, in the above respect, with the provisions of the 2000 agreement and where that is so, effect must be given to the provisions of the later agreement as a deliberate change of language in a document such as the present <em>prima facie </em>imports a change of intention. The 2000 agreement left sale of the erven completely within the discretion of the grantor of the right, i.e. the first appellant. In terms of the 2006 agreement the first appellant was bound to sell upon the withdrawal of the application then instituted by the respondents. (See in this regard <em>Port Elizabeth Municipal Council v Port Elizabeth Electric Tramway Co. Ltd.</em> 1947 (2) SA 1269 (A) at 1279;<em> Minister of Defence v Mwandinghi, </em>1993 NR 63 (SC) and <em>Moodley v Umzinto Town Board,</em> 1998 (2) SA 188 (SCA).)</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> Clause 2, as a term of the 2006 agreement, imposed bilateral duties on the parties, that meant that it required of both parties to perform what was required of them in terms of the agreement. In this instance the duty was on the respondents to first withdraw their application and once this was done the duty was then on the appellants to sell all erven.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> It is common cause that the respondents have performed their obligation and they have withdrawn their application against the appellants. It is therefore now the duty of the appellants to perform their part in terms of their undertaking. No time within which this undertaking must be performed was laid down by the parties. However, where a bilateral contract does not stipulate a time for performance, in this instance the performance by the appellants, the law implies the concept of a reasonable time, as was also pointed out by Mr. Smuts. (See in this regard <em>Willowdene Landowners Ltd v St Martin’s Trust, </em>1971 (1) SA 302 (TPD); <em>Cardoso v Tuckers Land and Development Corporation, </em>1981 (3) SA 54 (WLD),)</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> The above cases set out what should be taken into account to determine, in the peculiar circumstances of each case, what a reasonable time would be. Mr. Simon, the townplanner who deposed on behalf of the respondents, and Mr. Stubenrauch, the townplanner deposing on behalf of the appellants, both gave their estimates. That of Mr. Stubenrauch is somewhat longer than that of Mr. Simon. He estimated that it would still take 8 to 12 months to complete the outstanding steps and to proclaim the township. Although I am not called upon to determine what in the circumstances would be a reasonable time to proclaim the township these estimates are relevant to determine what the parties were contemplating when they entered into the 2006 agreement.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> Bearing in mind what has been set out above, I agree with Mr. Smuts that clause 2 of the 2006 agreement is clear and unambiguous. Its terms created a bilateral agreement where the respondents would withdraw their application, and upon that having occurred, the respondents agreed to sell all the erven situated in the to be proclaimed township of Wlotzkasbaken. It was common cause that this could only happen once the township was proclaimed and it is in this regard that the concept of a reasonable time applies. The period of a reasonable time also only applies to the time necessary to convert the settlement area into a proclaimed township upon which the erven could then be sold.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> What is the effect of this agreement? It was common cause that in terms of the 2006 agreement the respondents have a pre-emptive right to buy the erf or erven on which their structures are located. It however does not end there. By their agreement the parties converted their right of pre-emption, which was, as was correctly argued by both Counsel, uncertain as to when, if ever, it would be exercisable, into certainty, by agreeing that the appellants would in fact sell all erven which would then enable them to exercise their pre-emptive rights.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> I can find nothing repugnant or <em>contra bonos mores</em> in such an agreement nor was it argued that that was the case. Mr. Semenya’s argument that the 2000 and 2006 agreements only established for the appellants a bare pre-emptive right must be rejected for the above reasons.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> The appellants' counsel however argued that in regard to the unencumbered erven, those are the erven not subject to a pre-emptive right, the agreement cannot require of the appellants a duty to sell. Counsel argued that the respondents have no legal interest in those erven which would enable them to enforce their bargain.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> It is not quite clear to me what Counsel meant by the words "legal interest". No authority was quoted to us which would support such an argument. If thereby is meant that an enforceable contract could only come into being when such legal interest exists, be it in the form of some or other consideration or underlying right, then I must differ.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> As far back as 1919 the South African Appeal Court held in the case of <em>Conradie v Rossouw, </em>1919 AD 279 at 320:</p> </li> </ol></li> </ol><p>  </p> <p> “According to our law if two or more persons, of sound mind and capable of contracting, enter into a lawful agreement, a valid agreement arises between them enforceable by action. The agreement may be for the benefit of the one of them or of both (Grotius 3.6.2). The promise must have been made with the intention that it should be accepted (Grotius 3.1.48); according to Voet the agreement must have been entered into <em>serio ac deliberato animo</em>. And this is what is meant by saying that the only element that our law requires for a valid contract is <em>consensus</em>, naturally within proper limits – it should be <em>in</em> or <em>de re licita ac honesta.</em>”</p> <p>  </p> <p> (See further <em>Bank of Lisbon and South Africa Ltd v De Ornelas and Another,</em>1988(3) SA 580 (AD) at 599B and <em>Meyer v Iscor Pension Fund, </em>2003 (2) SA 715 (SCA) at 733E).</p> <p>  </p> <p>  </p> <p>  </p> <ol><li> <ol start="32"><li> <p> In my opinion clause 2 of the 2006 agreement complied fully with what was stated in the <em>Conradie</em>-case, <em>supra,</em> by De Villiers, AJA. It was never argued that there was no consensus amongst the parties or that they did not contract with a serious and deliberate intention. It could also not be said that the clause was contrary to public policy. It is a natural consequence that erven in a newly proclaimed township will be sold. The selling of the erven would also be in the interest of the respondents as it would speed up the proclamation of the township which in turn would enable them to acquire title in such property as is set out in the 2006 agreement. The sale of all erven could in time open the door for the establishment of a local authority with powers to levy rates and taxes and provide proper services.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> I therefore agree with Mr. Smuts that clause 2 of the 2006 agreement constitutes a valid and enforceable bilateral agreement namely that upon withdrawal of the application the appellants were obliged to sell all erven in the proclaimed township of Wlotzkasbaken, of course subject to the constraints of a reasonable time in which to proclaim the township. The Court <em>a quo</em> correctly found that the respondents’ justiciable right arose out of the 2006 agreement.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> Once the terms of the agreement are determined the Court must now consider whether the advertisement whereby the public was invited to lease erven in Wlotzkasbaken constituted a breach of the agreement between the parties.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> Mr. Smuts submitted that the first appellant committed an anticipatory breach whereby an intention was evinced by the first appellant to be no longer bound by the 2006 agreement. In this regard Counsel relied on the case of <em>Tuckers Land and Development Corporation (Pty) Ltd. v Hovis, </em>1980 (1) SA 645 (A).</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> This case was further explained by the Constitutional Court of South Africa in the case of <em>Barkhuizen v Napier, </em>2007 (5) SA 323 (CC) which confirmed that good faith underlies our law of contract. The following was stated on 346 – 347:</p> </li> </ol></li> </ol><p>  </p> <p> “[80] The requirement of good faith is not unknown to our common law of contract. It underlies contractual relations in our law. The concept of good faith was considered by the Appellate Division in <em>Tuckers Land and Development Corporation v Hovis, </em>albeit in the context of whether the doctrine of anticipatory breach should be grafted in our law. The Court was concerned, in particular, with whether the doctrine of anticipatory breach relates to a breach of an existing obligation. The Court observed that in Roman law courts generally had wide powers to complement or restrict the duties of parties, and to imply contractual terms in accordance with the requirement of justice, reasonableness and fairness. The concepts of justice, reasonableness and fairness constitute good faith…”</p> <p>  </p> <p>  </p> <p> The Court then quoted with approval the following excerpt from the <em>Tuckers Land–</em>case, namely:</p> <p>  </p> <p> “[81] It should be said that it is now, and has been for some time, felt in our domain, no doubt under the influence of the English law, that in all fairness there should be a duty upon a promisor not to commit an anticipatory breach of contract, and such a duty has in fact often been enforced by our Courts. It would be consonant with the history of our law, and also legal principle, to construe this as an application of the wide jurisdiction to imply terms conferred upon by the Roman law in respect of the <em>judiciae bonai fidei.</em> It would not be inapt to say, elliptically, that the duty flows from the requirement of <em>bona fides</em> to which our contracts are subject, and that such duty is implied in law and not in fact.”</p> <p>  </p> <p>  </p> <p>  </p> <ol><li> <ol start="32"><li> <p> Mr. Semenya conceded that to sell property does not include the leasing thereof. It was never, in my opinion, contemplated by the parties, when the 2006 agreement was concluded, that the sites, in the to be proclaimed township, would be leased. The obligation undertaken by the first appellant in terms of the 2006 agreement was to sell all erven. This meant, in this particular instance, that they would take all necessary steps to proclaim the township in order to fulfill their obligation to sell the erven and that they would do so within a reasonable time. The invitation to the public to lease the said erven was clearly not such a step and was in direct conflict with what first appellant had undertaken to do. I agree with Mr. Smuts that the right acquired by the respondents in terms of their agreement with the appellants was the right to have all the erven sold once the township was proclaimed. The intention to lease those erven was a breach of the right of the respondents to have the erven sold.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> The intention of the first appellant not to comply with their obligation was made clear by the fact that since the 2006 agreement no further steps were taken to have the township proclaimed. The reason for this is to be found in the affidavit of the deponent on behalf of the first appellant who candidly stated that it was no longer a priority of the first appellant to proclaim Wlotzkasbaken as a township as it only ranks fourth after three other settlement areas. It was furthermore pointed out by Mr. Smuts that it was now contended by Mr. //Garoeb that it was never the intention of the parties that all erven should be put up for sale.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> In regard to the test which a Court should apply in order to establish an anticipatory breach of the contract, the following was stated in the <em>Tuckers Land-</em>case, <em>supra</em>, at p. 653B – E:</p> </li> </ol></li> </ol><p>  </p> <p> “What the proper test is to be applied to the promisor’s conduct is not obvious, as there appear to be, conflicting <em>dicta</em> in this regard. This Court, however, seems to have gravitated in the direction of an objective test based upon the reasonable expectation of the promisee. In <em>Van Rooyen v Minister van Openbare Werke en Gemeenskapsbou, </em>1978 (2) SA 835(A) at 845 <em>in fine-</em>846A it is pointed out that ‘om ‘n ooreenkoms te repudieer, hoef daar nie ……’n subjektiewe bedoeling te wees om ‘n einde aan die ooreenkoms te maak nie’.</p> <p>  </p> <p> In <em>Ponisamy and Another v Versailles Estates (Pty) Ltd, </em>1973 (1) SA 372(A) at 387B the following passage from the judgment of Devlin J in <em>Universal Cargo Carriers Corporation v Citati, </em>(1957) 2 QB 401 at 436 is cited with approval:</p> <p>  </p> <p> ‘A renunciation can be made either by words or by conduct, provided it is clearly made. It is often put that the party renunciating must ‘evince an intention’ not to go on with the contract. The test of whether an intention is sufficiently evinced by conduct is whether the party renunciating has acted in such a way as to lead a reasonable person to the conclusion that he does not intend to fulfill his part of the contract.’</p> <p>  </p> <p> The test here propounded is both practicable and fair, and this is the test which I propose to apply in the present case.”</p> <p>  </p> <p> (‘to repudiate an agreement, there need not be…… a subjective intention to bring an end to the agreement.’ - my free translation of the afrikaans excerpt from the <em>Van Rooyen</em>-case, referred to above.)</p> <p>  </p> <p>  </p> <ol><li> <ol start="32"><li> <p> The full excerpt of what was said by Rabie JA (as he then was) in the <em>Van Rooyen-</em>case, <em>supra</em>, at p 845 -846 is the following:</p> </li> </ol></li> </ol><p>  </p> <p> “Om ‘n ooreenkoms te repudieer, hoef daar nie, soos in die aangehaalde woorde uit <em>Freeth v Burr</em> te kenne gegee word, ‘n subjektiewe bedoeling te wees om ‘n einde aan die ooreenkoms te maak nie. Waar ‘n party, bv, weier om ‘n belangrike bepaling van ‘n ooreenkoms na te kom, sou sy optrede regtens op ‘n repudiering van die ooreenkoms kon neerkom, al sou hy ook meen dat hy sy verpligtinge behoorlik nakom. (Kyk De Wet en Yeats <em>Kontraktereg en Handelsreg </em>3de uitg 0p 117).”</p> <p>  </p> <p> (To repudiate an agreement, there need not be, as was stated in the words cited from <em>Freeth v Burr </em>, that there be a subjective intention to bring an end to the agreement. Where a party, e.g., refuses to comply with an important term of the agreement, his conduct could, legally speaking, amount to a repudiation of the agreement, even if he was of the opinion that he properly complied with his obligations). – my free translation.</p> <p>  </p> <p>  </p> <p>  </p> <ol><li> <ol start="32"><li> <p> The decision of the first appellant to lease the sites is in conflict with their undertaking to sell all erven upon withdrawal of the application against them. The conduct of the first appellant was such that it would lead a reasonable person to the conclusion that it evinced an intention not to fulfill its part of the contract.</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> As was found by the Court <em>a quo</em> effect should be given to the rule <em>pacta sunt servanda</em> and to allow the appellants to renege on their contract would be “stultifying and subverting the principle of the rule of law, which is firmly imbedded in Namibia’s constitutionalism…..”</p> </li> </ol></li> </ol><p>  </p> <ol><li> <ol start="32"><li> <p> I have therefore come to the conclusion that the appeal should be dismissed and the following order is made:</p> </li> </ol></li> </ol><p>  </p> <ol><li> <p> The appellants’ appeal is dismissed with costs, such costs to include the costs of one instructing and two instructed counsel.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> Such costs to be paid jointly and severally by the appellants, the one paying the other to be absolved.</p> </li> </ol><p>  </p> <p>  </p> <p> ________________________</p> <p> <strong>STRYDOM, AJA</strong></p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> I agree.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> ________________________</p> <p> <strong>CHOMBA, AJA</strong></p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> I agree.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> ________________________</p> <p> <strong>MTAMBANENGWE, AJA</strong></p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> <strong>Counsel on behalf of the 1</strong><sup><strong>st</strong></sup><strong> appellant</strong>: MR. I A M SEMENYA, SC</p> <p> Assisted by: Mr. G S Hinda</p> <p>  </p> <p> Instructed by: Shikongo Law Chambers</p> <p>  </p> <p>  </p> <p> <strong>Counsel on behalf of the 2</strong><sup><strong>nd</strong></sup><strong> and 3</strong><sup><strong>rd</strong></sup><strong> appellants</strong> No appearance</p> <p>  </p> <p> Instructed by: The Government Attorney</p> <p>  </p> <p> <strong>Counsel on behalf of the 1</strong><sup><strong>st</strong></sup><strong> and 2</strong><sup><strong>nd</strong></sup><strong> respondents:</strong> Mr. D F Smuts, SC</p> <p> Assisted by: Mr. R Tötemeyer</p> <p>  </p> <p> Instructed by: Diekmann Associates</p></span></div></div> </div> </div> Mon, 05 Oct 2020 14:49:10 +0000 Anonymous 9085 at http://namiblii.org Waterberg Big Game Hunting Lodge Otjahewita (Pty) Ltd v Minister of Environment &amp; Tourism (SA 13 of 2004) [2005] NASC 9 (23 November 2005); http://namiblii.org/na/judgment/supreme-court/2005/9 <span class="field field--name-title field--type-string field--label-hidden">Waterberg Big Game Hunting Lodge Otjahewita (Pty) Ltd v Minister of Environment &amp;amp; Tourism (SA 13 of 2004) [2005] NASC 9 (23 November 2005);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/786" hreflang="und">EL</a></div> <div class="field__item"><a href="/taxonomy/term/335" hreflang="und">Procedural Fairness</a></div> <div class="field__item"><a href="/taxonomy/term/577" hreflang="und">Legal status of wild species</a></div> <div class="field__item"><a href="/taxonomy/term/580" hreflang="und">Wildlife (fauna)</a></div> <div class="field__item"><a href="/taxonomy/term/472" hreflang="und">Constitutional Interpretation</a></div> <div class="field__item"><a href="/taxonomy/term/279" hreflang="und">Judicial Review</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 10/05/2020 - 14:47</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>This was an appeal to the Supreme Court on a judgment of the High Court which had dismissed an application for the review and setting aside of a decision by the respondent to refuse the importation of Mountain Reedbuck from South Africa into Namibia.</p> <p>The appellant cited the respondent, pursuant to his duties, powers and functions as set out in the Nature Conservation Ordinance No. 4 of 1975. The appellant placed particular emphasis on his duty to consider and decide on the importation of live game from South Africa in accordance with Section 49(1) of the ordinance as amended by Section 12 of Act 5 of 1996. The evidence revealed that the decision to refuse the import of Mountain Reedbuck was made by a subordinate official who was not authorised to do so and based on a new policy which had not been communicated to the appellant.</p> <p>The court found out that this issue hinged on the confusion surrounding the parties involved, the reasons for the refusal and the failure of the respondent to abide by Rule 53 of the Rules of the High Court and Article 18 of the Namibian Constitution linked to administrative justice and the doctrine of “reasonable expectation”. The court held that the subordinate official acting on behalf of the respondent did not have the authority to make the decision which was set aside. Accordingly, the appeal succeeded, and the court directed the respondent to issue the permits applied for and pay the appellant’s costs.</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-rtf file--general"> <a href="https://media.namiblii.org/files/judgments/nasc/2005/9/2005-nasc-9.rtf" type="application/rtf; length=205460">2005-nasc-9.rtf</a></span> </div> <div class="field__item"> <span class="file file--mime-application-rtf file--general"> <a href="https://media.namiblii.org/files/judgments/nasc/2005/9/2005-nasc-9.rtf" type="application/rtf; length=205460">2005-nasc-9.rtf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p> CASE NO. SA 13/2004</p> <p> <strong>IN THE SUPREME COURT OF NAMIBIA</strong></p> <p> In the matter between:</p> <p>  </p> <p> <strong>WATERBERG BIG GAME HUNTING LODGE</strong></p> <p> <strong>OTJAHEWITA (PTY) LTD APPELLANT</strong></p> <p>  </p> <p> And</p> <p>  </p> <p> <strong>THE MINISTER OF ENVIRONMENT &amp; TOURISM RESPONDENT</strong></p> <p>  </p> <p>  </p> <p> <strong>Coram:</strong> Shivute, C.J., O’Linn, A.J.A., Chomba, A.J.A.</p> <p> <strong>Heard on</strong>: 17/06/2005</p> <p> <strong>Delivered on</strong>: 23/11/2005</p> <p> _______________________________________________________________</p> <p> <u><strong>APPEAL JUDGMENT</strong></u></p> <p>  </p> <p> <strong><u>O’LINN, A.J.A.:</u></strong> This judgment is divided for the purpose of easy reference into various sections namely:</p> <p>  </p> <p> I: INTRODUCTORY REMARKS</p> <p> II: THE CONFUSION ABOUT THE PARTIES INVOLVED, THE FAILURE TO COMPLY WITH RULE 53 OF THE RULES OF THE HIGH COURT AND ART 18 OF THE NAMIBIAN CONSTITUTION RELATING TO ADMINISTRATIVE JUSTICE AND THE DOCTRINE OF REASONABLE EXPECTATION.</p> <p>  </p> <p> III: THE LACK OF AUTHORITY TO DECIDE.</p> <p>  </p> <p> IV: CONCLUDING REMARKS</p> <p>  </p> <p> A: <u>INTRODUCTORY REMARKS</u></p> <p>  </p> <p> This is a judgment on appeal from the High Court to the Supreme Court. The appellant is Waterberg Big Game Hunting Lodge Otjahewita (Pty) Ltd, a company conducting business as a hunting and safari lodge with its main place of business at Farm Otjahewita 291, District Otjiwarongo, Namibia. It does business under the name “WABI Lodge” or “Wabi (Pty) Ltd”.</p> <p>  </p> <p> The appellant cited the Minister of Environment and Tourism in his official capacity as respondent, pursuant to his duties, powers and functions as set out in the Nature Conservation Ordinance No. 4 of 1975, particularly his duty to consider and decide on the importation of live game from South Africa in accordance with Section 49(1) of the said Ordinance as amended by Section 12 of Act 5 of 1996.</p> <p> The said parties will hereinafter be referred to respectively as “Waterberg Lodge” and “the Minister”. The Ministry of Environment and Tourism will be referred to as “the Ministry”. The present appeal is against a decision of the High Court of Namibia, per Mainga J, delivered on 2 July 2004, in which the learned judge dismissed an application by Waterberg Lodge for the review and setting aside of a decision by the <u>Cabinet</u>, <u>alternatively</u> the Minister, refusing applications by WABI Lodge for the importation from South Africa into Namibia of Mountain Reedbuck as per application dated 19.9.2002 and 27.9.2002.</p> <p>  </p> <p> Mr Frank SC appeared before us for the appellant and Mr Smuts SC, assisted by Mr Dicks, for the respondent.</p> <p>  </p> <p> II: <u>THE CONFUSION ABOUT THE PARTIES INVOLVED, THE REASONS FOR THE DECISION AND THE FAILURE OF THE RESPONDENT TO COMPLY WITH RULE 53 OF THE RULES OF THE HIGH COURT AND ART 18 OF THE NAMIBIAN CONSTITUTION RELATING TO ADMINISTRATIVE JUSTICE AND THE DOCTRINE OF “REASONABLE EXPECTATION</u>”.</p> <p>  </p> <p> The applications for the importation of the Mountain Reedbuck were made on the form provided by the “Ministry of Environment and Tourism” and referred to as Annexures B2 and A1 to the founding affidavit of Mr Mark Egger, in his capacity as a shareholder and managing director of “Waterberg Lodge”.</p> <p> It is unclear what precisely is meant by the term the “Ministry”. I will assume for the purpose of this judgment that the meaning of the term is as defined in the Oxford Advanced Dictionary of current English, namely: “Department of State under a Minister”.</p> <p>  </p> <p> It is further unclear on the available evidence, whether the Ministry or Mr Beytell, Director of Parks and Wildlife Management in the Ministry of Environment and Tourism, or Mr Beytell and the Ministry collectively, took the decision to decline the application. What is clear however is that neither the Cabinet nor the Minister took the decision. Furthermore there is no suggestion whatever that the Minister was consulted or was in any way a party to the decision-making process.</p> <p>  </p> <p> The Minister made no statement in the proceedings. However, Mr Barend Johannes Beytell, hereinafter referred to as Beytell, stated in his answering affidavit that he is “duly authorized to oppose this application <u>on behalf of the respondent</u> and to depose to this affidavit <u>on its behalf</u>.” (My emphasis added)</p> <p>  </p> <p> In the aforesaid answering affidavit Beytell cites the respondent in the heading to the affidavit as “Ministry of Environment and Tourism”. (My emphasis). It follows that the allegation by Beytell is thus in effect that he is authorized by the “Ministry” to oppose the application and is authorized by the “Ministry” “to depose to the affidavit on its behalf”.</p> <p> This adds to the confusion caused by correspondence from the “Ministry” as well as Beytell in reaction to the two applications by Waterberg Lodge under the name of Wabi Lodge and one application by Mr Dries Malan.</p> <p>  </p> <p> The letter dated 4 September 2002 but only signed by Mr S Simenda, acting Permanent Secretary of the Ministry of Environment and Tourism on 30.9.2002, reads as follows:</p> <p>  </p> <p> “Dear Mr Egger,</p> <p>  </p> <p> In response to your application to import Mountain reedbuck the following is our answer. After the bushbuck importation discussions, we in the Ministry reviewed the list of species that are imported and are busy with drafting a Cabinet submission making essentially the following recommendations:</p> <p>  </p> <ol><li> <p> That certain species which have been imported in large numbers, such as waterbuck and Black wildebeest, may be imported in future as stopping their importation now, serves no real purpose.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> That certain species such as Cape bushbuck and Mountain reedbuck, although they have been imported in small numbers, should no longer be allowed to be imported as they never occurred naturally in Namibia and some pose real biodiversity conservation risks because of potential inbreeding with Namibian subspecies. Similar springbok colour variants will no longer be allowed to be imported.</p> </li> </ol><p>  </p> <p> It was therefore decided to decline your application to import Mountain reedbuck. We trust that you accept our decision as being in the best interest of conservation in Namibia and want to again encourage you and others like minded to explore ways of promoting our rare Namibian species and conserving them effectively in a co-operative manner.</p> <p>  </p> <p> Yours sincerely</p> <p>  </p> <p> S Simenda – Acting Permanent Secretary.”</p> <p>  </p> <p> The letter dated 17<sup>th</sup> October 2002 by Mr Beytell to Mr Dries Malan reads as follows:</p> <p>  </p> <p> “Your letter dated 3<sup>rd</sup> October 2002 refers.</p> <p>  </p> <p> You are granted permission to continue transporting game from the RSA until 31 December 2002 as requested.</p> <p>  </p> <p> Your application to import 50 common bushbuck and Nyale has also been approved.</p> <p>  </p> <p> Please report the bushbucks specifically to our staff at the border post or the nearest office of the Ministry during official working hours. The bushbuck and Mountain reedbuck may not leave the farm which receives them without prior approval from the Ministry.</p> <p>  </p> <p> Please report back farms who received these species and members delivered at each.</p> <p>  </p> <p> Please note that a Cabinet submission has been prepared for the Minister to motivate the refusal of further import of these two species into Namibia. No further permits will be issued for import of common bushbuck and mountain reedbuck until we have received a response from Cabinet. Furthermore no extension of permits not fully utilised will be considered.</p> <p>  </p> <p> Yours sincerely</p> <p>  </p> <p> B Beytell</p> <p> Director</p> <p> Parks and Wildlife Management”</p> <p>  </p> <p> The last paragraph of the abovestated letter relating to Bushbuck and Mountain Reedbuck corresponds to some extent to the earlier letter by the Acting Permanent Secretary in so far as the intended submission to the Cabinet is concerned.</p> <p>  </p> <p> The latter letter by Beytell however gives the impression that the applications for import of Bushbuck and Mountain Reedbuck will be declined “<u>until we have received a response from Cabinet</u>”. (My emphasis added).</p> <p>  </p> <p> It was clearly implied in this letter that the decision by the Ministry was a preliminary and temporary measure pending the awaited response of the Cabinet to the submission by the “Ministry”.</p> <p>  </p> <p> This letter by Beytell indicates that at the time when Beytell wrote his letter dated the 17<sup>th</sup> October 2002 he was under the impression that the Cabinet was the decision maker.</p> <p>  </p> <p> Beytell in paragraph 48 of his aforesaid answering affidavit, says that the draft submission, Annexure B7 to his affidavit, was in fact never sent to Cabinet.</p> <p>  </p> <p> Why it was not sent after it was prepared and after Beytell had referred to it in his letter of the 17<sup>th</sup> October to Malan, was never explained. There was no indication whatever in the papers before the Court <em>a quo</em> and in this Court, that there was any “response” from the Cabinet as envisaged in Beytell’s letter to Malan dated 17<sup>th</sup> October 2002. That makes nonsense of Beytell’s said letter.</p> <p>  </p> <p> As a matter of fact there is no indication whether the Minister or the Cabinet was ever consulted in regard to the Ministry’s new policy to refuse the import of Bushbuck and Mountain Reedbuck.</p> <p>  </p> <p> Further confusion of this policy was created, when Beytell, according to Annexure BB6, annexed to his answering affidavit, on 29.8.2002 approved a permit to Dries Malan for the import of 100 Mountain Reedbuck on 31<sup>st</sup> October 2002.</p> <p>  </p> <p> The main difference between the Simenda letter of refusal purporting to have been written on 4<sup>th</sup> September and signed only on 30<sup>th</sup> September and Beytell’s allegations in his answering affidavit are the following:</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <table border="1" cellpadding="7" cellspacing="0" style="width:607px"><tbody><tr><td> <p> <u>The letter by Simenda</u></p> <ol><li> <p> The Ministry decided to decline the application.</p> </li> <li> <p> That certain species such as Cape bushbuck and Mountain Reedbuck, although they have been imported in small numbers, should no longer be allowed to be imported as they never occurred naturally in Namibia and <u>some</u> pose real bio-diversity conservation risks, because of <u>potential inbreeding with Namibian subspecies</u>. (My emphasis added)</p> </li> </ol></td> <td> <p> <u>Beytell's allegations</u></p> <p> 1. Beytell decided.</p> <p> 2. It is submitted that the term “inbreeding was mistakenly used and should read <u>crossbreeding</u>. It was intended in that way and would have been understood in that way. This did not form any part of my reasoning. I also admit that there is no potential for <u>crossbreeding</u> between Mountain Reedbuck and any Namibian subspecies. This likewise did not form part of my reasoning. The potential crossbreeding referred to in Annexure “A” to the applicant’s papers relates only to the Cape bushbuck mentioned therein. Any confusion in this regard is due to the unintended poor grammatical construction of paragraph (b) of the letter with regard to the decision sought to be reviewed.</p> </td> </tr></tbody></table><p>  </p> <p> It is astonishing that Beytell, who contends that he was the sole decision-maker and not the Cabinet, the Minister or the Ministry, did not write or draft or ensure the correctness of the letter signed by the Acting permanent Secretary Mr Simenda and purportedly drafted by Mr Erb, both of whom were obviously part and parcel of the Ministry of Environment and Tourism, as was Mr Beytell, the alleged sole decision-maker.</p> <p>  </p> <p> As the decision to refuse the import of Bushbuck and Mountain Reedbuck was a decision based on a new policy, which could be expected to be controversial and not acceptable to entrepreneurs in the live game trade and the hunting and tourist industry, one could expect that the decision-maker, whoever that was, would have taken care to explain correctly and carefully, the new policy and the reasons for the decision to Waterberg Lodge, being the first applicant to be refused on the ground of the new policy. He or she would not have left it to someone else, to do and say what he or she deems fit on the purported behalf of the decision-maker.</p> <p>  </p> <p> It is improbable that Simenda, a senior official, would just usurp Beytell’s power and function to write and formulate the letter of refusal and would suck the contents from his thumb. The letter was apparently formulated by Erb. Neither Simenda nor Erb submitted affidavits regarding circumstances in which the letter was written. The inference can thus be drawn that Simenda and/or Erb was not given the opportunity by respondent to submit an affidavit, because he could not support Beytell’s version.</p> <p>  </p> <p> The principle applicable was set out in various decisions and recently again applied by this Court.<sup><a class="sdfootnoteanc" href="#sdfootnote1sym" name="sdfootnote1anc" id="sdfootnote1anc"><sup>1</sup></a></sup></p> <p>  </p> <p> The formulation in the Elgin Fireclays case was as follows:</p> <p>  </p> <p> “It is true that if a party fails to place the evidence of a witness who is available and able to elucidate the facts, before the trial Court, this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him. See Wigmore, (section 285 and 286). But the inference is only a proper one if the evidence is available and if it would elucidate the facts”.</p> <p>  </p> <p> I may add that if the witness is not available, the party whose duty it is to place the evidence of such witness before Court, should place an explanation to that effect before Court.</p> <p>  </p> <p> In the instant case, no such explanation is before Court. This is the second time in the recent past when a respondent who is a Minister of the Namibian Government and/or his or her legal representative has failed to place such evidence before Court and where an adverse inference had to be drawn against the case put forward by such respondent. The previous case was that of <em>Dresselhaus Transport v the Government of Namibia.</em><sup><em><a class="sdfootnoteanc" href="#sdfootnote2sym" name="sdfootnote2anc" id="sdfootnote2anc"><sup>2</sup></a></em></sup></p> <p>  </p> <p> Not only do such tactics not avail the government in the litigation before the Court but they militate against the principle and policy of transparency to which the Government of Namibia has committed itself and by which the Government is bound.</p> <p>  </p> <p> Mr Beytell in his answering affidavit sets out a number of reasons for his decision, not contained in Simenda’s letter of refusal and according to Beytell, also conveyed by him to the representatives of Waterberg Lodge, including Mr Egger, the managing director of Waterberg Lodge, at a meeting subsequent to the taking of the decision to refuse an importation permit, but prior to the institution of proceedings. At this meeting Beytell did not offer a reconsideration of the applications.</p> <p>  </p> <p> When review proceedings was instituted in this case in accordance with Rule 53 of the Rules of the Namibian High Court, the notice was supported by the affidavits of Mark Egger, Mark Kutzner, Dr H.O. Reuter and Dr Herman Scherer in which the case of applicant was set out in detail.</p> <p>  </p> <p> It also cited the Ministry of Environment and Tourism as the respondent. This was probably induced by the fact that applicant at that stage was influenced by the Simenda letter of refusal, wherein it was indicated that the “Ministry” had taken the decision. However in applicant’s founding affidavit, the respondent was clearly cited as the “Minister of Environment and Tourism”.</p> <p>  </p> <p> In the notice, the respondent was also called upon in terms of Rule 53(1)(b),</p> <p>  </p> <p>  </p> <p> “to dispatch, within 15 days of receipt of the notice of motion, to the Registrar of this Honourable Court, the record of the proceedings and decisions sought to be corrected or set aside, <u>together with such reasons as they are by law required or desired to give and</u> that such respondents are to notify the applicants that they had done so”.</p> <p>  </p> <p>  </p> <p> It is common cause that the respondent did not submit any reasons at all in response to the aforesaid notice in terms of Rule 53(1)(b) supplementing or correcting the reasons contained in Simenda’s aforesaid letter of refusal. Only in the answering affidavit Beytell alleged that he and he alone took the decision to refuse the permit and that it was in no sense a “collective decision”.</p> <p>  </p> <p> The applicant as a consequence was placed at a disadvantage because it had no opportunity to respond in terms of Rule 53 (4) to these new reasons contained in respondent’s answering affidavit, unless applicant applied to Court for leave to submit additional replying affidavits in terms of Rule 6(5)(e) of the <u>general</u> rules applying to applications.</p> <p>  </p> <p> It may also be argued persuasively, that the implication of Rule 53 was that if reasons were given by a decision-maker at the time of notifying the decision to the applicant, the reasons so given by such decision-maker as appears from the record of the decision, should bind respondent in an application for review. The only excuse by Beytell for not supplementing or correcting the reasons given by Simenda is that he, Beytell orally explained his reasons to representatives of Waterberg Lodge <u>subsequent</u> to the taking of the decision and the notification thereof to applicant in Simenda’s letter signed on the 30<sup>th</sup> September 2002.</p> <p>  </p> <p> This is no justification for the failure. It may be that Beytell also relied on his contention in paragraph 47 of his answering affidavit to the effect that an applicant cannot claim a right to a permit and that part of Section 83(1) of Ordinance 4 of 1975 read with Section 12 of Act 5 of 1996 which provides <em>inter alia</em> that the decision-taker shall not be obliged to furnish any reasons for the refusal by it to grant or issue any permit. This section, if relied on, however does not afford any justification for such an attitude in view of Article 18 of the Namibian Constitution and the many decisions of this Court interpreting and applying that article.</p> <p>  </p> <p> It is further clear from the affidavits that even though the refusal was in terms of a new policy based on formerly undisclosed grounds, neither Beytell nor the Minister or any other official applied the <u><em>audi alterem partem</em> rule</u>, by notifying the applicant, before taking the decision, of the intended new policy and the grounds thereof and giving the applicant an opportunity to make representations in regard thereto before the decision was taken, as required by the aforesaid Article 18 of the</p> <p>  </p> <p>  </p> <p>  </p> <p> Namibian Constitution and the decisions of the Court in regard thereto.<sup><a class="sdfootnoteanc" href="#sdfootnote3sym" name="sdfootnote3anc" id="sdfootnote3anc"><sup>3</sup></a></sup></p> <p>  </p> <p> It was also pointed out by Mr Frank in argument that a considerable number of permits for the importation of Mountain Reedbuck had been issued prior to the disputed refusal to Waterberg Lodge, without any objection by the Ministry. That this is so, is quite clear from the affidavits and the documentary evidence placed before Court.</p> <p>  </p> <p> Furthermore, a number of factual allegations regarding the type of fencing of the property of Waterberg Lodge and the adjoining property, the water facilities available and the issues relating to biodiversity were only raised in Beytell’s answering affidavit. These allegations, held against Waterberg Lodge, were never put to the representatives of Waterberg Lodge, before the decision was taken, notwithstanding the fact that these allegations and arguments were clearly controversial and not admitted by Waterberg Lodge. Its representatives should have been apprised of such alleged facts and arguments based thereon, before the decision was taken and an opportunity given to controvert such facts before the decision was taken.</p> <p> Mr. Frank also pointed out correctly that the entity that decided, be it Beytell and or the Ministry, applied a pre-determined policy, which militated against the exercise of a discretion in each case as envisaged by Section 49 (I) of the Ordinance and Article 18 of the Namibian Constitution. If the policy was merely used as a guideline, it would have been in order if applied by the decision-maker, provided that the applicant had knowledge of the policy and had been given the opportunity to respond to it before the application was decided. In the circumstances applicable to this application, no discretion was in fact exercised as envisaged by section 49 (I) and article 18 of the Constitution.</p> <p>  </p> <p> Mr Frank further contended that in the circumstances pertaining to the application in this case, the applicant had a <u>legitimate or reasonable expectation</u> to be heard before the taking of the decision and to be granted the importation permit.</p> <p>  </p> <p> The ratio of this “doctrine of legitimate expectation” is consistent with the thinking and principles contained in Article 18 of the Namibian Constitution. The said doctrine, as well as Article 18, are based on reason and justice in the exercise of administrative discretion. The doctrine was overtaken by the later incorporation of Article 18 in the Namibian Constitution. Nevertheless the doctrine can serve a useful purpose in supplying some specifics to the broad and general norms set out in Article 18 and be used as a tool for the implementation of Article 18. As such it should be applied by our Courts in conjunction with Article 18.</p> <p>  </p> <p> Although neither Article 18 nor the decisions of he High and Supreme Court of Namibia require the application of the <em>audi alterem partem</em> rule in every case of the numerous routine administrative decisions that must be taken by officials from day to day, the rule must be applied to ensure administrative justice where for example facts adverse to an applicant are relied on by the decision-maker not known to the applicant and where the doctrine of “reasonable expectation” applies.</p> <p>  </p> <p> In my view the circumstances of this case are such that the <em>audi alterem partem</em> rule should have been applied. In addition there are several other shortcomings in the decision-making process referred to above which justify a setting aside of the decision.</p> <p>  </p> <p> Any doubt regarding the justification of such setting aside on the aforesaid grounds, is removed by the fact that Beytell had no legal authority to take the decision. As a consequence I have declined to deal in more detail with the failure to comply with Article 18, the <em>audi alterem partem</em> rule and the doctrine of legitimate expectation and will deal in the following section with this decisive and fatal ground for setting aside the decision.<sup><a class="sdfootnoteanc" href="#sdfootnote4sym" name="sdfootnote4anc" id="sdfootnote4anc"><sup>4</sup></a></sup></p> <p>  </p> <p> III: <u>THE LACK OF AUTHORITY TO DECIDE</u></p> <p> During argument before us, certain incisive questions were posed by members of the Court relating to the delegation of powers.</p> <p>  </p> <p> As the issue appeared to be decisive and Mr Smuts for the respondent appeared to have become uncertain of the correctness of his original submissions as contained in written heads of argument, the Court allowed respondent’s counsel to submit additional argument and gave leave to appellant’s counsel to reply thereto.</p> <p>  </p> <p> There then followed the filing of supplementary heads of argument which were very helpful and narrowed the field of dispute on this decisive issue. There was no further dispute about the legal requirements for a valid delegation as will appear from my further analysis of the legal issues.</p> <p>  </p> <p> Counsel for the respondent accepted that where “a delegation is raised, the onus rests upon the party asserting it, to prove it”. Counsel referred to the decision in <em>Chairman, Board of Tariffs and Trade v Teltron (Pty) Ltd</em>, 1997 (2) SA 25, (AD) where it was stated at p 31 F-G:</p> <p>  </p> <p> “The Board is, after all, a creature of statute, and where the statute creating it gives it the right to delegate its duties, there is an onus on the Board to show that that delegation has been properly made. It may well be that the onus has not been discharged by the mere allegation that there had been a delegation. The terms of the delegation have not been disclosed. There is furthermore no proof that the formalities required for a resolution to that effect had been complied with, that the requisite quorum had been present and that the resolution had been properly recorded. None of this has been done”.</p> <p>  </p> <p> Counsel also referred to other decisions and then concluded: “The approach of the Courts has thus been that a delegation is to be restrictively construed and that the person asserting it bears the onus of establishing the delegation as a question of fact”<sup><a class="sdfootnoteanc" href="#sdfootnote5sym" name="sdfootnote5anc" id="sdfootnote5anc"><sup>5</sup></a></sup>.</p> <p>  </p> <p> Mr Smuts further correctly conceded: “The overriding principle is that where the legislature has vested powers and functions in a subordinate authority it intends the power to be exercised by <u>that</u> authority…”<sup><a class="sdfootnoteanc" href="#sdfootnote6sym" name="sdfootnote6anc" id="sdfootnote6anc"><sup>6</sup></a></sup></p> <p>  </p> <p> After making the aforesaid concessions, counsel for respondent attempted to save its case by submitting, without any supporting authorities, that “the fact that the Legislature has taken the power from Cabinet and placed it in the hands of the Minister,…. would not in our submission mean that valid administrative action undertaken by the Cabinet and its predecessors would be undone and fall away by virtue of the amendment……”</p> <p>  </p> <p> I have no problem with this statement if restricted to <u>valid</u> administrative action, such as e.g., applications for permits granted or refused by an authority, properly authorized by law, to decide on such applications. Where the amending law however removes the power to decide from the previous entity to another entity, such as in the instant case, applications for permits <u>subsequent to such transfer of power</u>, will have to be decided by the new entity, unless that new entity validly, i.e. in terms of a law allowing such entity to delegate, has in turn delegated such power to another entity.</p> <p>  </p> <p> I also disagree with counsel for respondent where they submit: “A delegation is after all administrative action which, we submit, would remain in place until withdrawn by the new repository of power”. This contention applies to <u>subordinate legislation</u> such as regulations, because regulations are laws which, it may be argued, remain operative, until repealed. However, delegations of the power to decide on applications for the import of game must be distinguished from applications already decided by a previous delegatee, who acted at the time in terms of a valid delegation of power.</p> <p>  </p> <p> If prior delegations remain in place until the new entity appointed by law of Parliament revokes that delegation, it would make nonsense of Parliament’s <u>express</u> appointment of the new entity to exercise the power in question. This is even more apparent where as in this case, neither the new 1996 Act nor any other legislation empowered the Minister to delegate his/her power under Section 49(1) of Ordinance 4 of 1975 as amended.</p> <p>  </p> <p> Even if respondent counsel’s above submission was arguable, respondent’s case is fatally flawed because as appears from the following analysis, there is no sufficient proof of a lawful delegation to Beytell.</p> <p>  </p> <p> It is important to keep in mind that the respondent – being the Minister of Environment and Tourism, has not filed any opposing affidavit and there is no defence or explanation by the Minister before the Court <em>a quo</em> and before this Court.</p> <p>  </p> <p> Beytell, does not in his answering affidavit allege that he was authorized by the Minister to oppose the application on behalf of the Minister or to file the answering affidavit on behalf of the Minister. (See par. 1 of the affidavit).</p> <p>  </p> <p> Furthermore, Beytell nowhere sets out or purports to set out, the defence or opposition if any, of the <u>Minister</u> but only his own opposition to the application and his reasons for the disputed decision, allegedly taken by himself. In the circumstances the application for review must be regarded as unopposed by the respondent.</p> <p>  </p> <p> There can also be no doubt that, regardless of what the position was before the enactment and promulgation of Act 5 of 1996, the incumbent Minister of Environment and Tourism in terms of Section 12 of that Act, became the undisputed functionary to take decisions for the granting or refusal of any permit for the importation of game from South Africa in terms of Section 49(1) of Ordinance 4 of 75, unless of course, his authority was subsequently <u>lawfully</u> delegated to another official.</p> <p>  </p> <p> Although Beytell alleged that the said authority was lawfully delegated to him by the pre-independence Executive Committee and thereafter by the Cabinet of the pre-independence “Cabinet of the Interim Government” he could not and did not allege a delegation by the Minister in pursuance of Section 49(1) as amended by Section 12 of the aforesaid Act 5 of 1996, enacted by the Parliament of an independent Namibia.</p> <p>  </p> <p> Mr Beytell did allege a delegation in 1992 or as at 1992 by reference to a document marked BB9 containing a list of office bearers, in terms of which the “Head of the Permit Office” is indicated as the office bearer who could exercise the powers given under Section 49(1). Beytell claimed that he filled that position at the time.</p> <p>  </p> <p> The list is not signed by any person and there is no indication on it or in Beytell’s affidavit who had issued the list and in terms of which law it was issued. The vagueness of this and other allegations by Beytell in this application is indeed worrying. Whether or not he was not properly advised by his legal advisers, remains an open question.</p> <p>  </p> <p> Be that as it may. Beytell nowhere alleges or suggest that the Minister of Environment and Tourism delegated or purported to delegate his powers under Section 49 (1) of Ordinance 4 of 1975 to him in any capacity. The only statutory provision for delegations of authority referred to by counsel for respondent, was a general authority to delegate powers of the <u>Executive Committee</u> of the pre-independence period as contained in Sections 2-6 of the Delegation of Powers Ordinance 24 of 1973 as amended by Section 1 of Ordinance 20 of 1975.</p> <p>  </p> <p> It must be noted that Section 6(2) of Ordinance 24 of 1973 as amended contains a typical savings clause by providing –</p> <p>  </p> <p>  </p> <p> “Any power, authority or function delegated to any person in terms of the Ordinance repealed by Section (1) shall be deemed to have been delegated to such person in terms of this Ordinance”.</p> <p>  </p> <p>  </p> <p> There is no similar savings clause in Section 12 of Act 5 of 1996 and it consequently appears that at least as from the enactment and promulgation of Act 5 of 1996, the Minister of Environment and Tourism is the only authority to exercise the power under Section 49 (1) of Ordinance 4 of 1975 to grant or refuse permits for the importation of live game from South Africa into Namibia.</p> <p>  </p> <p> I have considered Articles 140 and 141 of the Namibian Constitution which may be regarded as serving the purpose of a savings clause dealing with the law in force at the date of Namibian Independence on 21/3/1990. The said Ordinance 24 of 1973 as amended was never expressly repealed or amended by Act of Parliament or declared unconstitutional by a competent Court and consequently remained in force in terms of Article 140(1) of the Namibian Constitution.</p> <p>  </p> <p> For the purpose of argument I will assume that any delegation of power validly ceded in terms thereof will remain valid even after Namibian Independence on 21 March 1990, unless expressly or impliedly revoked by Act of Parliament after Namibian Independence.</p> <p>  </p> <p> Neither respondent nor counsel for respondent relied on the aforesaid provisions of the Namibian Constitution for supporting the argument that any pre-independence delegation relating to Section 49(1) of Ordinance 4 of 1975 was not only in force at the date of independence but continued in force even after the promulgation of Act 5 of 1996.</p> <p>  </p> <p> Although Mr Beytell in his answering affidavit alleged that there was in fact a delegation of the power to his post by the pre-independence Executive Committee, he produced no documentary proof of such delegation.</p> <p>  </p> <p> Nevertheless, even if I assume for the purpose of argument that a proper delegation did in fact take place, and continued in force for some time after Namibian Independence by virtue of Article 140 and 141 (1) of the Namibian Constitution, I am convinced that such delegation could not survive the coming into force of Section 12 of Act 5 of 1996. This legislation unambiguously and expressly vested the power in the Minister of Environment and Tourism. There is no law in terms of which the Minister could delegate his power and no savings clause in terms of which an existing delegation could remain effective. There is also no allegation that the said Minister delegated or even purported to delegate his power.</p> <p>  </p> <p> It follows from the above that any purported exercise of the power by Mr Beytell or even the “Ministry” would be <em>ultra vires</em> their powers and null and void.<sup><a class="sdfootnoteanc" href="#sdfootnote7sym" name="sdfootnote7anc" id="sdfootnote7anc"><sup>7</sup></a></sup></p> <p>  </p> <p> IV: <u>CONCLUDING REMARKS</u></p> <p>  </p> <p> I have shown in the previous section that the purported decision of Beytell and/or the Ministry had to be set aside as null and void.</p> <p>  </p> <p> The question then arises what should be the further course of events. There are two possibilities:</p> <p>  </p> <p> 1. That the original application by Waterberg Lodge be referred to the Minister for consideration and decision. Or</p> <p>  </p> <p> 2. That the Minister is directed to grant the two applications by the applicant.</p> <p>  </p> <p> I have come to the conclusion that in the particular circumstances of this case the second option should be followed.</p> <p>  </p> <p> Since writing my proposed judgment, I have had the benefit of reading the proposed additional judgments of my learned brothers Shivute, CJ AND Chomba, AJA followed by incisive discussions between us.</p> <p>  </p> <p> We all agree that the appeal must succeed and that the Minister must be ordered to pay the cots.</p> <p>  </p> <p> We differ however in regard to the issue whether or not the Minister must be directed to grant the permits in question or whether the application must be referred to the Minister to consider the applications <em>de novo</em>. On this issue I was of the opinion that the Minister should be ordered to issue the permits applied for. My learned brothers on the other hand are of the opinion that the applications must be referred "back to the Minister to consider and decide after complying with the principles of natural justice including the <em>audi alterem partem</em> rule".</p> <p>  </p> <p> I will attempt to summarize the main points relied on by my learned brothers:</p> <p>  </p> <p> 1. The effect of my proposed order is that the Minister is penalised by not being given an opportunity to properly consider the applications and such penalization is not justified.</p> <p>  </p> <p> 2. The Minister did not take part in the previous decision making process and had no opportunity to do so as a result of the unilateral action of Mr. Beytell and/or the Ministry.</p> <p>  </p> <p> 3. The Minister did not file an opposing affidavit, probably because he did not know of the court action against him.</p> <p>  </p> <p> 4. The issues raised in the papers are complicated and in such a case the Court should not usurp or unduly interfere with the powers of the Minister to exercise his/her discretion. Such action will also be in conflict with the devision of powers between the Legislature, Executive and the Judiciary.</p> <p>  </p> <p> 5. The delays in the case are not substantial and was in any case not caused by delays on the side of the Minister and/or Ministry.</p> <p>  </p> <p> 5.1 The further delays in obtaining a binding final decision will not be unduly prejudicial to the applicant.</p> <p>  </p> <p> 6. To order the Minister to grant the application and issue the requested permit, without giving him the opportunity to exercise the discretion given to him under section 49(1) of the Nature Conservation Ordinance 4 of 1975 as amended by section 12(b) of Act 5 of 1996, will in effect deprive the Minister of his authority. Section 49(1) reads in effect:</p> <p>  </p> <p> "No person shall import … any game or wild animal … <u>except under a permit granted by the Minister</u>…"</p> <p>  </p> <p>  </p> <p> I regret to have to state that I continue to disagree with my learned brothers on the issue of referral to the Minister to consider the applications <em>de novo</em> and adhere to my original point of view.</p> <p>  </p> <p> I find it necessary however to supplement and then consolidate my original reasons in the light of the points made by my learned brothers. The supplemented reasons are as follows:</p> <p>  </p> <p> 1. This is a unique case which must be distinguished from the vast majority of administrative cases where the Minister or other office bearers who had to exercise an administrative discretion according to law, purported to exercise such function and such discretion, but had not done so properly, e.g. where such functionary had failed to comply with the empowering law and/or had failed to comply with art 18, 25, 40 and 41 of the Namibian Constitution.</p> <p> In this case the incumbent of the post of Minister had failed to consider and decide applications since the enactment of section 12 of Act 5 of 1996, which unequivocally placed on the Minister, the duty to decide applications for permits.</p> <p>  </p> <p> The question arises: Which of the above two failures, is the most serious failure of duty? In my respectfull view, the last type amounts to a total abrogation by disuse of the said power and function to decide and is the most serious of the two abovementioned failures.</p> <p>  </p> <p> 2. Neither the Minister nor the Courts should pass or attempt to pass the buck to the Ministry, or any official of the Ministry. This is so because the Namibian Constitution provided for and entrenched the Rule of Law. It abolished the system of <u>parliamentary</u> supremacy and replaced it with the principle of <u>constitutional</u> supremacy.</p> <p>  </p> <p> Although the constitution also incorporated the principle of the division of powers between Legislature, Executive and the Judiciary, it strengthened the role of the Courts compared with that role in the pre-independence dispensation.</p> <p>  </p> <p> When considering the relevance and applicability of decisions of the Courts prior to the implementation of the Namibia Constitution in 1989, the the Namibian Courts must always consider the impact, if any, of the Namibian Constitution on those decisions.</p> <p>  </p> <p> The same principle applies to decisions of South African Courts. Although the Namibian Courts are not bound by such decisions, their persuasive effect plays a part in the decisions of Namibian Courts.</p> <p>  </p> <p> Moreover, South African decisions based on the new South African Constitution which came into effect in 1996, must be considered in the light of the Namibian Constitution and differences if any between these constitutions.</p> <p>  </p> <p> The Courts play a pivotal role in the enforcement of the Chapter on fundamental human rights and freedoms. The freedoms included in article 21(1)(j) "the right to practice any profession, or carry on any occupation, trade or business" subject to "the law of Namibia, in so far as such law imposes <u>reasonable restrictions</u> on the exercise of the rights and freedoms conferred by the said sub-article, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of Namibia, national security, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an office".</p> <p>  </p> <p> It is not only the abolition of such rights which are prohibited in terms of article 25(1), but the <u>abridgment</u> of such rights. The Executive and the agencies of Government are included in this prohibition.</p> <p>  </p> <p> Sub-article (2) of article 25 provides that the Courts can be approached by aggrieved persons to enforce or protect a right which has been "<u>infringed or threatened</u>". This right is not limited to rights which have been abolished or abridged.</p> <p>  </p> <p> Sub-article (3) of Article 25 provides specifically that the Court "shall have the power to make all such orders as shall be <u>necessary and appropriate</u> to secure the applicants the enjoyment of the rights and freedoms conferred on them under the provisions of this Constitution, should the Court come to the conclusion that such rights and freedoms have been unlawfully <u>denied</u> or <u>violated</u>…."</p> <p>  </p> <p> Art. 18 provides for Administrative Justice and reads as follows:</p> <p>  </p> <p> "Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on such bodies and officials by common law and any relevant legislation and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal".</p> <p>  </p> <p> It must be clear from the above that the Honourable incumbent Minister had failed completely to decide on applications for permits for almost ten years. The incumbent Minister thus acted not only in breach of Ordinance 4 of 1975 as amended, but also in conflict with art. 18 of the Constitution, by not at all performing the functions and duties imposed by law for the benefit <em>inter alia</em> of persons in the position of WABI Lodge, carrying on the business of keeping a lodge on a farm stocked with game. The failure of the incumbent Minister becomes even more exposed when art. 40 and 41 of the Constitution is considered. These articles provide:</p> <p>  </p> <p> "Art 40 <u>Duties and Functions </u></p> <p> <u>Members of the Cabinet</u></p> <p>  </p> <p> The members of the Cabinet shall have the following functions:</p> <p>  </p> <ol><li> <p> <u>to direct, co-ordinate and supervise the activities of Ministries and Government Departments</u> including para-statal enterprises, and to review and advise the President and the National Assembly on the <u>desirability and wisdom</u> of any prevailing subordinate legislation, regulations or orders pertaining to such para-statal enterprises, regard being had to the public interest;</p> </li> </ol><p>  </p> <ol start="2"><li> <p> <u>to initiate bills</u> for submission to the National Assembly; …</p> </li> </ol><p>  </p> <ol start="3"><li> <p> …</p> </li> </ol><p>  </p> <ol start="4"><li> <p> to carry out such other functions <u>as are assigned to them by law or are incidental to such assignment</u>;</p> </li> </ol><p>  </p> <ol start="5"><li> <p> …</p> </li> </ol><p>  </p> <ol start="6"><li> <p> …</p> </li> </ol><p>  </p> <ol start="7"><li> <p> …..</p> </li> </ol><p>  </p> <ol start="8"><li> <p> ….</p> </li> </ol><p>  </p> <ol start="9"><li> <p> ….</p> </li> </ol><p>  </p> <ol start="10"><li> <p> ….</p> </li> </ol><p>  </p> <ol start="11"><li> <p> to issue <u>notices, instructions and directives</u> to facilitate the implementation and administration of laws administered by the Executive, subject to the terms of this Constitution or any other law; …"</p> </li> </ol><p>  </p> <p> "Art. 41: <u>Ministerial Accountability</u></p> <p>  </p> <p> All Ministers shall be <u>accountable individually</u> for the administration of their own <u>Ministries</u> and <u>collectively</u> for the administration of the work of Cabinet, both to the President and to Parliament."</p> <p>  </p> <p>  </p> <p> Section 12 of Act 5 of 1996, placing the function to consider and decide on applications for permits, squarely on the shoulders of the incumbent Minister, had to be initiated in Parliament by the incumbent Minister in terms of par (b) of Art. 40 of the Namibian Constitution. This specific provision, in conjunction with the general provision in par (a) "to direct, coordinate and supervise the activities of the Ministries", and par (k), the obligation "to issue, notices, instruction and directives to facilitate the implementation and administration of laws administrated by the Executive, makes it impossible for the Minister to plead ignorance of the law and to shield behind members of his Ministry for the Minister's failure to exercise his/her functions in accordance with the constitution and the law. But it must be said immediately in favour of the incumbent Minister, that he/she did not attempt to shift the blame.</p> <p>  </p> <p> The incumbent Minister just did not file any answering affidavit. This omission is aggravated by the fact that officials such as Simenda, the Acting Permanent Secretary and Erb, who were involved in the decision making process and/or the explanation thereof, did not submit any affidavits.</p> <p>  </p> <p> 3. It seems to me therefore with the greatest respect to my learned brothers, that the Court should not shift the blame on behalf of the Minister who failed to take the Court into his confidence. Similarly the Court should not make the excuse on behalf of the incumbent Minister, that he/she may not have known about the legal proceedings in which the applicant cited the Minister as the respondent. Although there were initial discrepancies in the formal citation which appear to be due to the negligence of applicant's attorneys, this point was not taken by counsel for the Minister in the appeal, obviously because it was without substance.</p> <p>  </p> <p> 4. It is obvious from the above that although Beytell should have known better, he did not intentionally usurp the powers and functions of the Minister. Rather, it was the incumbent Minister, himself/herself who abrogated his/her function and power <u>by disuse</u>.</p> <p>  </p> <ol start="5"><li> <p> In the circumstance it cannot be said that if my proposed order is issued by the Court, the Court would be usurping the function of the Minister. It is rather the incumbent Minister himself/herself who had the duty to function over many years, but who deprived himself/herself of the opportunity to function. The <u>Court</u> would consequently also not be "penalizing" the Minister by making an order as proposed by me, but rather rectifying a grave neglect by the said incumbent in this regard in accordance with the provisions of the Namibian Constitution above referred to.</p> </li> </ol><p>  </p> <p> Should the matter be referred to the Minister for his consideration <em>de novo</em>, he would probably rely on officials of his Ministry to come to a decision. Beytell, in his answering affidavit, demonstrated a strongly held opinion and adherence to a fixed policy decided upon by the Ministry. He will probably convey that opinion to the Minister when the Minister considers the applications. There is no indication that the Honourable Minister is an expert on the issue. The possibility of bias of the officials and the effect of the predetermined policy on the Minister, is rather strong.</p> <p>  </p> <ol start="5"><li> <p> The applicant/appellant will be severely prejudiced if the applicant/appellant is now compelled by the order of Court to put its case <em>de novo</em> to a Minister who had failed for many years to exercise the power and function allocated to him/her.</p> </li> </ol><p> It is not only the three years that have elapsed since the making of its application, but the time needed and the expenses entailed to get finality that have to be considered. This time and cost will not necessarily end with the decision of the Minister, because if the applications are again refused, review proceedings may again have to be instituted by the applicant, delaying finality for a further period of years.</p> <p>  </p> <p> After having had to endure the chaotic position of confusion and neglect caused by the actions and omissions of the Minister and his Ministry, the question must be squarely put and answered: Is it fair and reasonable to require the applicant to submit its case <em>de novo</em> to the said Minister and Ministry in such circumstances?</p> <p>  </p> <p> On the other hand, the granting of the said applications by the Minister in execution of the order of the Court, in due course, will not prejudice the State’s interest and duty to protect the bio-diversity of Namibian wild life but will enable the Minister and the Ministry, in conjunction with and in consultation with the joint stakeholders, to decide on a policy and procedures which will sufficiently protect such bio-diversity as well as the public interest and the interest of the wild game farmers, traders and businessmen and women. They are entitled in terms of the fundamental freedom enshrined in art. 21 (j) of the Namibian Constitution, to practice their trade, business or profession subject to the law of Namibia, in so far as such law imposes reasonable restrictions, on the exercise of such right or freedom.</p> <p>  </p> <p> Section 49(1) of Ord. 4 of 1975 and art. 18 of the Constitution, are part of the aforesaid law of Namibia. Section 49 does impose reasonable restrictions, such as veterinary control for the importation of any game and in issuing the permit, <u>additional</u> conditions may be imposed other than a total ban to safeguard biodiversity and to prevent the spread of sickness by imported game.</p> <p>  </p> <p> 7. This is not a case where the alleged complications of the issue of bio-diversity and the division of powers between the Legislature, the Executive and the Courts should be overemphasized.</p> <p>  </p> <p> 7.1 After all, several similar applications were apparently approved over many years for several applicants until the applications of applicants were suddenly refused, in execution of a new policy adopted by an unauthorized Ministry under the control of the Minister.</p> <p>  </p> <p> During this period the issue of protecting the biodiversity was never raised and at no stage was it alleged that the imported game had infected the indigenous game with any disease or had any adverse effect on such game in practice.</p> <p>  </p> <ol start="7"><li> <ol start="2"><li> <p> As to the alleged infringement of the principle and theory of division of powers and the alleged need not to unduly interfere with division of powers, the following points must be kept in mind:</p> </li> </ol></li> </ol><p>  </p> <ol><li> <p> <u>Art 1(3)</u> of the Constitution, merely provides that "the main organs of the State shall be the Executive, the Legislature and the Judiciary. The functions and powers of these organs are dealt with separately in other provisions of the constitution, but although distinct they overlap.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> As to the power of one organ to interfere in the powers and functions of another, it is obvious that Parliament can and will interfere in the functions of the Executive.</p> </li> </ol><p>  </p> <p> As far as the Courts are concerned, the Courts are mandated specifically to interfere not only with the Legislature in regard to the constitutionality of laws, but with the Executive in regard to its actions and/or omissions which are in conflict with art. 18, 25, 40 and 41 and/or in conflict with the provisions of other laws.</p> <p>  </p> <p> It follows from the above that no principle of non-interference can be derived from the Namibian Constitution at least not in regard to "interference" by the Courts in the functions and powers of the Executive, in the case of acts and omissions in conflict with the Constitution and/or other applicable laws.</p> <p>  </p> <p> 8. There can be no doubt that the Minister and the Ministry, although not <u>abolishing</u> the freedom of the applicant/appellant to conduct a business of its choice, it has by its actions and omissions "<u>abridged</u>" such right in terms of art. 25(1) or "<u>infringed</u>" it in terms of art. 25(2) of the constitution. That abridgment or infringement will be exacerbated by the Court, if the Court prolongs the agony by referring the matter to the Minister for consideration <em>de novo</em>.</p> <p>  </p> <p> 9. The Court has a wide discretion as to whether it should refer the matter back to the functionary who had failed to exercise his/her function properly, for a rehearing, or whether the Court should direct the functionary to issue an order as defined by the Court in order to achieve an expeditious, reasonable and just solution.<sup><a class="sdfootnoteanc" href="#sdfootnote8sym" name="sdfootnote8anc" id="sdfootnote8anc"><sup>8</sup></a></sup></p> <p>  </p> <p> However, in the present case, where the incumbent Minister had failed to perform the function allocated to the Minister by law, without any excuse or justification, it will, in my respectful opinion not only amount to a failure to act in accordance with the letter and spirit of articles 12, 18, 21(j) and 25 of the Namibian Constitution, but also a failure of justice, should this Court refer the applications to the said Minister for a hearing and decision in which the applicant is expected to submit to such process at this late stage.</p> <p>  </p> <ol start="10"><li> <p> I have taken note of the decision in <em>Minister of Environmental Affairs and Tourism &amp; Ors v Phamhill Fisheries Pty Ltd</em> <sup><a class="sdfootnoteanc" href="#sdfootnote9sym" name="sdfootnote9anc" id="sdfootnote9anc"><sup>9</sup></a></sup> quoted by my learned brother Shivute CJ in which the Court held:</p> </li> </ol><p>  </p> <p> "Judicial deference is particularly appropriate where the subject-matter of an administrative action is very technical or of a kind in which a Court has no particular proficiency…"</p> <p>  </p> <p>  </p> <p> This is obviously only one of the considerations.</p> <p>  </p> <p> Furthermore, a lot of material and opinions have already been placed on record relating to the issues involved and in regard to the applicable facts relevant in this particular case.</p> <p>  </p> <p> It is accepted that the biodiversity of the Namibian wildlife must be protected but whether or not, accepting that principle, the sudden adoption of a policy behind the scenes and arbitrarily choosing the applicant as the first victim, is justified in the case before us, is a completely different issue. On this issue the Court is surely in as good a position as the Minister to decide, if not in a better position.</p> <p>  </p> <p> Furthermore, there is no evidence or indication at all, that the Minister is an expert or would have other unbiased expertise available to place him in a better position to decide than the Court, on the issues, factual and legal, which have emerged in this case.</p> <p>  </p> <p> After all, the main consideration as stated by my learned brother Shivute CJ, on the authority of the case law, is - <u>"In essence … a question of fairness to both sides".</u></p> <p>  </p> <p> My learned brother Shivute, CJ, has also adopted the <em>dictum</em> in the decision of <em>Minister of Environmental Affairs &amp; Tourism v Phambili Fisheries (Pty) Ltd</em> wherein it was stated:</p> <p>  </p> <p> ""Judicial deference does not imply judicial timidity or an unreadiness to perform the judicial function. It simply manifests the recognition that the law itself places certain administrative action in the hands of the Executive, not the Judiciary."</p> <p>  </p> <p> This broad principle is subject to the provisions of the Namibian Constitution discussed <em>supra</em>.</p> <p>  </p> <p> Furthermore, the problem in this case is that the Minister had failed completely to perform the "administrative action" placed in the hands of the Executive by the Namibian Constitution and section 49(1) of the Nature Conservation Ordinance, as amended by Act of Parliament.</p> <p>  </p> <p> In such circumstances the Judiciary must not fail to make the appropriate order because of "judicial timidity" or "an unreadiness to perform the judicial function".</p> <p>  </p> <p> I fear that a decision by this Court ordering the applications to be heard de novo by the incumbent Minister, may well be seen by many as "judicial timidity" or "an unreadiness to perform the judicial function".</p> <p>  </p> <p> For these reasons I adhere to the order proposed by me in my draft judgment being:</p> <p>  </p> <p> 1. The appeal succeeds.</p> <p>  </p> <p> 2. It is declared that the refusal by Mr Beytell and/or the Ministry of Environment and Tourism to grant the appellant’s applications of 19<sup>th</sup> and 27<sup>th</sup> of September 2002 for the importation of Mountain Reedbuck, is <em>ultra vires</em> and null and void.</p> <p>  </p> <p> 3. The respondent, the Minister of Environment and Tourism, is directed to issue the permits applied for.</p> <p>  </p> <p> 4. The respondent is ordered to pay appellant’s costs of the appeal as well as that in the Court <em>a quo</em>.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> <u>________________________</u></p> <p> O’LINN, A.J.A.</p> <p>  </p> <p>  </p> <p>  </p> <p> <strong>ON BEHALF OF THE APPELLANT MR T J FRANK SC</strong></p> <p> <strong>Instructed by: ENGLING, STRITTER &amp; PARTNERS</strong></p> <p>  </p> <p> <strong>ON BEHALF OF THE RESPONDENT MR D F SMUTS SC</strong></p> <p> <strong>ASST. BY MR G DICKS</strong></p> <p> <strong>Instructed by: THE GOVERNMENT ATTORNEY</strong></p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> CASE NO.: SA 13/2004</p> <p>  </p> <p>  </p> <p> IN THE SUPREME COURT OF NAMIBIA</p> <p>  </p> <p>  </p> <p> WATERBERG BIG GAME HUNTING LODGE</p> <p> OTJAHEWITA (PTY) LTD APPELLANT</p> <p>  </p> <p>  </p> <p> versus</p> <p>  </p> <p>  </p> <p> THE MINISTER OF ENVIRONMENT &amp; TOURISM RESPONDENT</p> <p>  </p> <p>  </p> <p>  </p> <p> CORAM: Shivute, CJ, O'Linn, AJA, <em>et</em> Chomba, AJA.</p> <p>  </p> <p> HEARD ON: 17/06/2005</p> <p>  </p> <p> DELIVERED ON: 23/11/2005</p> <p> <u>____________________________________________________________________________</u></p> <p>  </p> <p> APPEAL JUDGMENT</p> <p> <u>____________________________________________________________________________</u></p> <p>  </p> <p> <u>Chomba, A.J.A.:</u> I have had the opportunity of perusing the judgment prepared with great erudition by my brother O'Linn in this appeal and I therefore entertain no scruples with the verdict he has arrived at that the appeal should be allowed. I have also read the judgment of my brother Shivute C.J. and note that while concurring, as I do with the overall verdict of upholding the appeal, the Chief Justice does not agree with the order proposed by our brother O'Linn that the Minister of Environment and Tourism, (the Minister), must now grant a permit to the Respondent, Waterberg Big Game Hunting Lodge Otjahewita PTY Ltd. (Waterberg) pursuant to the rejected applications which gave rise to the proceedings herein. Instead the Chief Justice has counter-proposed that the applications be referred to the Minister for him to consider and make a decision thereon after complying with the principles of natural justice including the <em>audi alteram partem </em> rule.</p> <p>  </p> <p> Before I pronounce my opinion on this important matter on which my two brothers have expressed divergent views, I propose first to examine the factual situation as it emerges from the affidavits of those who assert that the decision of refusal should be reviewed and set aside as well as from the affidavits of the opponents of the requested review.</p> <p>  </p> <p> The motion for review or setting aside the decision whereby the application by Waterberg was refused was principally founded on the affidavit of Mr. Mark Egger (Mr. Egger), a shareholder and managing director of Waterberg. In the ensuing paragraphs I shall highlight only those salient aspects of Mr. Egger's affidavit, which are relevant to the proposed controversial order. Mr. Egger deposed in paragraph 8 that during September 2002 Waterberg, in response to an advertisement, lodged an application with the Ministry of Environment and Tourism (the Ministry). The application, which was annexed to Mr. Egger's affidavit and was marked "A1", was headed "Application to import wild animals or plants or their parts, derivatives and products". The items of intended importation were indicated as 50 live mountain reedbuck. In the same month of September 2002 Waterberg submitted a second import application for 40 more live mountain reedbuck. All the 90 animals were intended to be imported from the Republic of South Africa.</p> <p>  </p> <p> By letter marked "H" and dated 4<sup>th</sup> September 2002 but said to have been signed on 30<sup>th</sup> September 2002, it would appear that both applications were refused. The negative letter "H" was signed by one, S. Simenda, designated as the Acting Permanent Secretary of the Ministry. It would appear also that upon receipt of "H" the same was handed over to a Mr. Mark Kutzner, a legal practitioner acting for Mr. Egger. Mr. Kutzner took up the matter of the rejected applications with a Mr. Ben Beytell who was described by Mr. Egger as belonging to the Directorate of Scientific Services. This Mr. Ben Beytell, as will be apparent later herein, is in fact Mr. Barend Johannes Beytell, Director: Parks and Wildlife Management in the Ministry. Mr. Beytell is said to have explained to Mr. Kutzner that the applications were rejected because of the proximity of Waterberg's land to the Waterberg Plateau Game Park.</p> <p>  </p> <p> In paragraph 15.1 of his affidavit Mr. Egger averred that the correct functionary who was required to consider and decide on the applications did not do so. He speculated that in terms of the applicable ordinance the application ought to have been considered and determined by the Cabinet or the Ministry/Minister, adding that the decision on the applications was in fact made by Mr. Beytell, officials of the Ministry or the Acting Permanent Secretary of the Ministry. He further opined that in terms of the contents of the letter "H' the decision was the product of collective action. He then concluded that the proper functionary who should have considered the application and made the decision had abrogated his powers.</p> <p>  </p> <p> In response to the depositions of Mr. Egger as summarised above, Mr. Barend Johannes Beytell's affidavit discloses the following. He, Mr. Beytell, was at the material time the Director: Parks and Wildlife Management in the Ministry. He had rendered 25 years of service in the Ministry and declared that he had the requisite professional qualifications and experience relevant to his position of Director. He deposed that in terms of Section 49(1) of the ordinance as amended, the power to grant permits for the importation of wild game was vested in the Minister. The provisions of Section 49(1) notwithstanding, he declared in paragraph 8 of his affidavit, thus:</p> <p>  </p> <p> "As is apparent from what is stated below the power to grant or refuse permits under Section 49(1) has been delegated to me by virtue of the position I occupy. The applicant's application served before me and after duly and carefully considering the application within the context of appropriate and relevant conservation and environmental principles and guidelines, particularly in furtherance of the biological diversity of Namibia, I decided to refuse it."</p> <p>  </p> <p> In paragraph 24 he added that the discretion exercisable under Section 49(1) by the Ministry "was exercised by me in the present matter." The assertion of Mr. Beytell having been the decision maker in this context permeates through a number of paragraphs in his affidavit such as paragraphs 26, 51.5, 52.1, 54.2, 54.3, 56 and 57, to mention some only. In paragraph 54.2 he asserted, <em>inter alia, </em>"I deny that it was a collective decision in any sense."</p> <p>  </p> <p> Emphasing his claim that the power to make decisions pursuant to Section 49(1) was delegated to him, Mr. Beytell deposed as follows in paragraph 52.1:</p> <p>  </p> <p> "As Director, Parks and Wildlife management, I am Head of the Permit Office, I'm delegated to take decisions of this nature. The delegation to do so dates back to pre-independence times. I am aware of the decision of the then Cabinet of the Interim Government delegating the power to the equivalent of my position......"</p> <p>  </p> <p> Having highlighted the salient aspects of the depositions made by the dramatis personae, so to speak, namely Mr. Egger on one hand and Mr. Beytell on the other, I shall now proceed to consider the question whether the order that this court should make should be either that the Minister should be ordered to grant Waterberg a permit as my brother O'Linn proposes to do or be ordered to consider the application <em>de novo </em>as the Chief Justice counter - proposes.</p> <p>  </p> <p> The resume of the averments of Mr. Egger shows that he was quite assertive that the proper functionary did not consider and determine Waterberg's applications. He thereafter speculated that the decision seemed to have been made by Cabinet, officials of the Ministry, Mr. Beytell or that it was a collective decision. However, whatever doubts were raised by Mr. Egger have been put to rest by Mr. Beytell. The latter deposed that the decision was not made by Cabinet nor was it a collective decision but that it was made by himself. On this issue therefore Mr. Beytell's categoric assertion is to be preferred to that of Mr. Egger which was speculative.</p> <p>  </p> <p> Mr. Beytell's further assertions, as is shown hereinbefore, are that he was the one upon whom the import application were served; that the power to grant or refuse import permits for wild game was delegated to whoever held the position that he had at the material time and ergo that the power was exercisable, and was in fact exercised, by him; that the delegation was done before Namibia's independence; and that he was personally aware that the Cabinet of the Interim Government effected the delegation of the power. All these assertions are equally uncontroverted.</p> <p>  </p> <p> Flowing from the foregoing, I propose to consider the assertion by Mr. Egger that the functionary required to exercise the power of granting import permits had abrogated that power. Was that in fact the case? During the period before the Nature Conservation Amendment Act, No.5 of 1996 was enacted, Section 49(1) of the Nature Conservation Ordinance 1975 provided that the function of issuing import permits for Wild Game was exercisable by the Executive Committee. The 1996 Amendment transferred the function from the Executive Committee to the Minister.</p> <p>  </p> <p> The foregoing notwithstanding, according to the deposition of Mr. Beytell, before Independence the Cabinet of the Interim Government delegated the function to an official of the Ministry holding a position equivalent to that which Mr. Beytell held at the material time. That meant that although the law at that time vested the function in the Executive Committee, which was in fact the Cabinet of the day, by virtue of the directive of the Cabinet of the Interim Government, the discharge of the function became that of an official in the Ministry. It is evident that even after the change of the law in 1996 the <em>de facto</em> functionary continued to be the ministry official holding the position of Director. That that was so can be inferred from the deposition of Mr. Beytell at the tail end of paragraph 52.1 where he stated-</p> <p>  </p> <p> "My delegated powers have never been contested by this applicant (or anyone else for that matter) who addressed applications to my office......"</p> <p>  </p> <p> This assertion quite clearly suggests that it is not only in the instant case that Mr. Beytell exercised the so-called delegated power.</p> <p>  </p> <p> To the question I have posed earlier, namely whether the Minister abrogated his power and thereby allowed Mr. Beytell to exercise it, I can now confidently hold and find as a fact that there was no abrogation. The truth of the matter is that the Cabinet - although in my view quite wrongly and unlawfully - purported to divest the Minister's precursor, the Executive Committee, of the said power and to transfer it to the holder of the office of Director.</p> <p>  </p> <p> I take judicial notice that the Cabinet, as a collective body of Ministers and headed by the President, is a superior body vis-à-vis the position of Minister. In the event, it is not surprising that Ministers holding the portfolio of Environment and Tourism (or any of its predecessors) have obligingly let a wrong ministry official exercise the power, which statutorily belongs to them. They had no choice but to defer to the directive of the superior body. To this end therefore the Minister's failure to personally consider Waterberg's applications cannot be attributed to dereliction of duty on his part.</p> <p>  </p> <p> Moreover in the instant case there is not a shred of evidence that the applicant's import applications were at any stage placed before the Minister for consideration. Rather, the factual situation is that Mr. Beytell received the applications and, believing that the power to act on the applications belonged to him through delegation, went ahead and made the disputed decision. It is stated that the proceedings in this case must "obviously" have been brought to the Minister's attention by the Government Attorney. The reason given for this supposition is that it was the Minister who was cited as the Respondent in those proceedings. In so far as I have pored over the affidavit evidence in this matter, I find not a tittle of support for that supposition. Furthermore, it is beyond peradventure that the Minister has not personally participated in these proceedings either in the court <em>a quo </em>or in this court.</p> <p>  </p> <p> It is common cause that Section 49(1) of the Ordinance vests a discretion in the Minister in so far as consideration of import permits is concerned. He can either allow or refuse such an application. To order the Minister to grant a permit to Waterberg in the present case, would in my view, unjustifiably deprive him of the statutory authority vested in him by Section 49(1). Since to my mind the Minister did not abrogate his power and as he has not personally participated in these proceedings, it would, in my view, be unduly highhanded to deprive him of his discretion.</p> <p>  </p> <p> What is more, there is in this matter a heated conflict emerging from expert evidence proffered by the proponents of the motion to review or set aside as against the evidence of those opposed to the motion. This is particularly so on whether or not the importation of mountain reedbuck can pose a danger to the genetic integrity of Namibia's indigenous wildlife populations. It is consequently my firm view that it is in the wider interest of Namibia that the Minister be presented with information on the pros and cons of this issue in order to enable him to prudently exercise his statute given discretion.</p> <p>  </p> <p> A notion has been canvassed that to let Waterberg's applications be submitted for reconsideration at this stage would be unfair to it. It is so canvassed on the ground that Waterberg has already waited for a very long time for a favourable decision. The insinuation is that executive red tape has occasioned the delay. The record of appeal, to the contrary, shows that swift action was taken by the executive. The facts in this case show that the two applications were lodged in September 2002. The letter "H" conveying the negative decision was dated 4<sup>th</sup> September, but only signed on 30<sup>th</sup> September 2002. It was faxed to Waterberg on October 1, 2002. Waterberg was aggrieved by the negative decision and a Notice of Motion was filed on its behalf on 4<sup>th</sup> December 2002. Service of the motion was effected on 6<sup>th</sup> December 2002. A notice to oppose dated 30<sup>th</sup> December 2002 was filed on 7<sup>th</sup> January 2003. Allowing for the filing of affidavits by the respective parties, the notice for set down was dated 7<sup>th</sup> August 2003 and it gave the date of hearing as 10<sup>th</sup> November 2003. There followed an amended Notice of set down which designated a new date of hearing as 28<sup>th</sup> November 2003. The Motion was heard on the last mentioned date but the judgment was reserved and was only given on 2<sup>nd</sup> July 2004. Once again Waterberg was aggrieved and consequently a notice of appeal was filed on its behalf on 28<sup>th</sup> July 2004. The appeal was heard in this court on 17<sup>th</sup> June 2005. Thus it can be seen that what has distanced the applicant from receiving an expected favourable decision was not any delay on the part of the Ministry. Rather, it was the slow judicial process, which has caused it. For this further reason I believe that to direct the Minister to grant a licence on the basis that Waterberg has had a long time of waiting would be tantamount to misplacement of blame, if any blame at all can be said to be justified.</p> <p>  </p> <p> In the final analysis I hold that the Minister did not abrogate his power and because the Minister has not participated in the proceedings I concur with the Chief Justice that the Minister be directed to hear and determine Waterberg's applications afresh. In doing so the Minister must comply with the <em>audi alterum </em>rule and he is also hereby enjoined to act fairly and reasonably according to the dictates of Article 18 of the Namibian Constitution.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> _______________________</p> <p> <strong>CHOMBA, AJA</strong></p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> CASE NO. SA 13/2004</p> <p> <strong>IN THE SUPREME COURT OF NAMIBIA</strong></p> <p> In the matter between:</p> <p>  </p> <table border="0" cellpadding="7" cellspacing="0" style="width:600px"><tbody><tr><td> <p> WATERBERG BIG GAME HUNTING LODGE</p> <p> OTJAHEWITA (PTY) LTD</p> </td> <td> <p>  </p> <p> APPELLANT</p> </td> </tr></tbody></table><p>  </p> <p> And</p> <p>  </p> <table border="0" cellpadding="7" cellspacing="0" style="width:600px"><tbody><tr><td> <p> THE MINISTER OF ENVIRONMENT &amp; TOURISM</p> </td> <td> <p> RESPONDENT</p> </td> </tr></tbody></table><p>  </p> <p> Coram: Shivute, CJ, O’Linn, AJA, Chomba, AJA</p> <p> Heard on: 17/06/2005</p> <p> Delivered on: 23/11/2005</p> <p>  </p> <p> <u><strong>APPEAL JUDGMENT</strong></u></p> <p>  </p> <p> <u>SHIVUTE CJ:</u> I have had the advantage of reading the judgment of my Brother O'Linn, AJA and I respectfully agree that the appeal should be upheld for the reasons set out in his judgment. I furthermore agree that the respondent should be ordered to pay the appellant's costs. I, however, find myself unable to agree with that part of the order proposed by my Brother O'Linn directing the respondent to grant the permit to the appellant and I shall briefly set out the reasons for so disagreeing.</p> <p>  </p> <p> The application for a permit was made and stood to be considered pursuant to the provisions of section 49(1) of the Nature Conservation Ordinance, 4 of 1975 (the Ordinance). The section as amended by section 12(b) of Act 5 of 1996 (the Act) and insofar as it is relevant reads:</p> <p>  </p> <p> "No person shall import … any game or wild animal … except under a permit granted by the Minister: …"</p> <p>  </p> <p>  </p> <p> "Minister" is defined in the Ordinance (as amended by section 1 of the Act) to mean the Minister of Environment and Tourism.</p> <p>  </p> <p> It was common ground between the parties that the decision to refuse the applicant a permit to import mountain reedbuck from South Africa was not made by the Minister. As my Brother O'Linn, AJA, correctly found, there was furthermore no allegation that the Minister was consulted or at any rate was part of the decision-making process. On the contrary, Mr. Beytell the Director: Parks and Wildlife Management in the respondent's Ministry pertinently contended that he was the sole decision maker. Apart from Mr. Beytell's <em>ipsissima verba</em>, there was no documentary proof of a valid delegation of the powers to consider and decide applications for a permit to the office of which Mr. Beytell is the head or to any other office in the respondent's Ministry for that matter.</p> <p>  </p> <p> As Botha JA stated in <em>Attorney-General, OFS v Cyril Anderson Investments (Pty) Ltd</em> 1965(4) SA 628(A) at 639 C-D:</p> <p>  </p> <p> "The maxim <em>delegatus delegare non potest</em> is based upon the assumption that, where the legislature has delegated powers and functions to a subordinate authority, it intended that authority itself to exercise those powers and to perform those functions, and not to delegate them to someone else, and that the power delegated does not therefore include the power to delegate. It is not every delegation of delegated powers that is hit by the maxim, but only such delegations as are not, either expressly or by necessary implication, authorised by the delegated powers."</p> <p>  </p> <p>  </p> <p> It follows then that in the present case the Minister is the proper functionary to exercise the powers conferred on him or her by section 49(1) of the Ordinance. It was partly on that ground that my Brother O'Linn, found that the purported exercise of the discretionary powers vested in the Minister by Mr. Beytell in the absence of a lawful delegation was <em>ultra vires</em> and null and void, a finding that I respectfully endorse.</p> <p>  </p> <p> In the light of this finding that in itself disposes of the appeal, I consider that the proper functionary should be afforded an opportunity to consider and decide on the application, taking into account policy guidelines, the law and the merits of the appellant's application. This is particularly imperative in the light of the consideration that the repository of powers has not deposed to an affidavit setting out his own position <em>vis-à-vis</em> the stance taken by Mr. Beytell. Although obviously an employee of the Respondent's Ministry, Mr. Beytell seemingly did not, as O'Linn, AJA found, have authority to oppose the application before the High Court on behalf of the Minister and to depose to the answering affidavit on his behalf. In paragraph 1 of his answering affidavit, Mr. Beytell, <em>inter alia</em>, states:</p> <p>  </p> <p> "I am duly authorised to oppose this application on behalf of the respondent and to depose to this affidavit on <u>its</u> behalf." (Emphasis added.)</p> <p>  </p> <p>  </p> <p> The respondent is cited in Mr. Beytell's affidavit as the <u>Ministry</u> of Environment and Tourism. Although Mr. Mark Egger, who deposed to a replying affidavit on behalf of the appellant, stated that he did not dispute paragraph 1 of Mr. Beytell's answering affidavit, this attitude must be understood in the context of the apparent confusion or uncertainty about which functionary in the respondent’s Ministry dealt with the application and the appellant's contention that the decision to refuse it a permit was essentially a collective decision made by the "Ministry" as conveyed by Mr. Simenda in the letter dated 4 September 2002. That position may well explain the initial citation of the respondent in the Notice of Motion as the "Ministry" rather than the Minister of Environment and Tourism. The respondent was, however, properly cited in Mr. Egger’s founding affidavit.</p> <p>  </p> <p> I do not share the view apparently taken that the respondent should, in effect, be penalised, <em>inter</em> <em>alia</em>, for having allegedly abrogated his power and, in effect, for having allowed Mr. Beytell to act on his behalf contrary to the relevant provisions of the Ordinance. The finding that the respondent had allowed Mr. Beytell to act on the respondent’s behalf presupposes that the respondent had been aware at all relevant times that the powers to consider and decide on the applications for permits were conferred on him alone <u>and</u> that, contrary to the contention advanced by Mr. Beytell, there had not been a lawful delegation of these powers to any official in the respondent’s Ministry. In my respectful view, there is no evidence on the papers before us to support such a finding. On the contrary, the evidence presented by Mr. Beytell in this regard was that the power to decide on applications for a permit had allegedly been delegated to the head of the permit office (headed by Mr. Beytell at the time of the application) before Independence and that the head of the permit office had always exercised the power in question. It seems to me that Mr. Beytell acted on a <em>bona fide</em> but mistaken assumption that as the head of the permit office, he was empowered to deal with applications under section 49(1) of the Ordinance.</p> <p>  </p> <p> If Mr. Beytell who says that he had worked for the respondent’s Ministry, including its constitutional predecessor, for more than 25 years and that he was “fully conversant” with the provisions of the Ordinance can be so utterly mistaken, can the possibility that the respondent <u>may</u> have been unaware that he was the only functionary empowered to determine applications entirely be excluded? I think not. It does not therefore seem to me to be right that a penalty should, in effect, be imposed on the respondent by being directed to grant the permit before he has had the time to consider the application and when he has evidently not been heard by the Court.</p> <p>  </p> <p> In any event, I am of the view that although there has been a lapse of three years since the <u>submission</u> of the application, it would not be fair to <u>both</u> sides, in the circumstances of this case, for the Court to direct the respondent to grant the permit for the following additional reasons:</p> <p>  </p> <p> When setting aside a decision of an administrative authority, a review Court will not, as a general rule, substitute its own decision for that of the functionary, unless exceptional circumstances exist. <em>SA Jewish Board of Deputies v Sutherland NO and Others</em> 2004(4) SA 368 at 390B.</p> <p>  </p> <p> Thus, in <em>Masamba v Chairperson, Western Cape Regional Committee, Immigrants Selection Board and Others </em>2001 (12) BCLR 1239 (C), the Cape Provincial Division of the High Court of South Africa stated at 1259D-E:</p> <p>  </p> <p> "The purpose of judicial review is to scrutinise the lawfulness of administrative action in order to ensure that the limits to the exercise of public power are not transgressed, not to give the courts the power to perform the relevant administrative function themselves. As a general principle, therefore, a review court, when setting aside a decision of an administrative authority, will not substitute its own decision for that of the administrative authority, but will refer the matter back to the authority for a fresh decision. To do otherwise would be contrary to the doctrine of separation of powers in terms of which the legislative authority of the State administration is vested in the Legislature, the executive authority in the Executive, and the judicial authority in the courts."</p> <p>  </p> <p>  </p> <p> I respectfully associate myself with this dictum.</p> <p> See also <em>Ruyobeza and Another v Minister of Home Affairs and Others</em> 2003(5) SA 51 (C) at 63G – J.</p> <p>  </p> <p> Whether there are exceptional circumstances justifying a Court to substitute its own decision for that of the administrative authority is "in essence … a question of fairness to <u>both</u> sides". (Emphasis is mine). <em>Livestock</em> <em>Meat</em> <em>Industries</em> <em>Control</em> <em>Board</em> v <em>Garda</em> 1961(1) <em>SA 342 (A) at 349G; Jewish Board of Deputies v Sutherland NO and others (supra)</em> at 390G; <em>Erf One Six Seven Orchards CC v Greater Johannesburg Metropolitan Council (Johannesburg Administration) and Another</em> 1999(1) SA 104 (SCA) at 109C – E.</p> <p>  </p> <p> Hlophe J (as he then was) lucidly and succinctly stated the principles pertaining to the substitution of the functionary’s decision in <em>University of Western Cape and Others v Member of Executive Committee for Health and Social Services and Others</em> 1998 (3) SA 124 (C) at 131D – G as follows and I quote with respectful approval:</p> <p>  </p> <p> “Where the end result is in any event a foregone conclusion and it would merely be a waste of time to order the tribunal or functionary to reconsider the matter, the Courts have not hesitated to substitute their own decision for that of the functionary. The Courts have also not hesitated to substitute their own decision for that of a functionary where further delay would cause unjustifiable prejudice to the applicant. Our Courts have further recognised that they will substitute a decision of a functionary where the functionary or tribunal has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again. It would also seem that our Courts are willing to interfere, thereby substituting their own decision for that of a functionary, where the Court is in as good a position to make the decision itself. Of course the mere fact that a Court considers itself as qualified to take the decision as the administrator does not <em>per se</em> justify usurping the administrator's powers or functions. In some cases, however, fairness to the applicant may demand that the Court should take such a view."</p> <p>  </p> <p> (Reference to authorities omitted.)</p> <p>  </p> <p>  </p> <p> In my respectful view the circumstances of this case, viewed objectively, are such that none of the above grounds justifies the substitution by the Court of its own decision for that of the functionary. A measure of judicial deference is therefore called for in this case, which as contentions advanced by the parties tend to show, involves the typically complex task of balancing competing interests. Judicial deference in the context of this case should be understood to mean:</p> <p>  </p> <p> "… a judicial willingness to appreciate the legitimate and constitutionally-ordained province of administrative agencies; to admit the expertise of those agencies in policy-laden or polycentric issues; and to be sensitive in general to the interests legitimately pursued by administrative bodies and the practical and financial constraints under which they operate. This type of deference is perfectly consistent with a concern for individual rights …. It ought to be shaped not by an unwillingness to scrutinize administrative action, but by a careful weighing up of the need for - and the consequences of - judicial intervention. Above all, it ought to be shaped by a conscious determination not to usurp the functions of administrative agencies; not to cross over from review to appeal."</p> <p>  </p> <p>  </p> <p> A Cockrell ‘”Can You Paradigm?”- Another Perspective on the Public Law/Private Law Divide’ 1993 <em>Acta</em> <em>Juridica</em> 227 (Quoted as in <em>Logbro</em> <em>Properties</em> <em>CC</em> <em>v</em> <em>Bedderson</em> <em>NO</em> <em>and</em> <em>Others</em> <em>2003</em> <em>(2)</em> <em>SA</em> <em>460 (SCA)</em>)</p> <p>  </p> <p>  </p> <p> Besides, as it was stated by the South African Supreme Court of Appeal in <em>Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd</em> 2003(6) SA 407 (SCA) at 432 para [53]:</p> <p>  </p> <p> "Judicial deference is particularly appropriate where the subject-matter of an administrative action is very technical or of a kind in which a Court has no particular proficiency."</p> <p>  </p> <p>  </p> <p> In his answering affidavit, Mr. Beytell averred that a consideration of the application for the importation of certain species postulated essentially a weighing up process involving, inter alia, an equally weighty consideration of relevant conservation and environmental principles, particularly the constitutionally recognised principle of the maintenance of ecosystems and sensitive ecological processes as well as the biological diversity of Namibia. (See Article 95(l) of the Namibian Constitution under the heading ‘Principles of State Policy’.)</p> <p>  </p> <p> Mr. Beytell furthermore referred to the Convention on Biological Diversity, an important international instrument, which emerged from the landmark 1992 United Nations “Earth Summit” in Rio de Janeiro, to which Namibia is a signatory and which also forms part of the law of Namibia by virtue of Article 144 of the Namibian Constitution. He set out in greater detail the approach he had adopted in the purported consideration of the appellant’s application and expressed certain views regarding the approach, which views Mr. Beytell asserted, were supported by environmental scientists that he mentioned by name.</p> <p>  </p> <p> Mr. Beytell’s views may be debatable, so I referred to them merely to illustrate the point I am making, namely that it seems to me that the subject-matter of the administrative decision in this case is relatively technical and therefore the consideration of the application for a permit is best left to the functionary with the power and proficiency to deal with the applications of this nature. The Court seems to me to be ill-equipped to make the decision of this nature. The matter in my view should be referred to the respondent for consideration in the light of this judgement and the judgements of my Brothers O’Linn, AJA, and Chomba, AJA. The respondent will have at his or her disposal the knowledge and skills of the experts referred to in Mr. Beytell’s affidavit. The appellant too submitted affidavits of experts who engaged Mr. Beytell and his experts in a spirited debate regarding the question whether or not the importation of Mountain Reedbuck would have had deleterious effects on the ecosystems of Namibia and who generally took issue with their views on biological diversity. I venture to think that some of these experts will offer their own perspectives on matters within the field of their expertise that may fall to be decided during the consideration of the application, thereby assisting the respondent to make a fair, reasonable and informed decision.</p> <p>  </p> <p> With greatest respect to my learned Brother who holds the contrary view, I would like to adopt the following dictum from the decision of the South African Supreme Court of Appeal in <em>Minister of Environmental Affairs &amp; Tourism v Phambili Fisheries (Pty) Ltd (supra)</em> at 431G Para [50] where it was stated:</p> <p>  </p> <p> "Judicial deference does not imply judicial timidity or an unreadiness to perform the judicial function. It simply manifests the recognition that the law itself places certain administrative action in the hands of the Executive, not the Judiciary."</p> <p>  </p> <p>  </p> <p> What is required of the respondent is essentially for the respondent to have regard to a broad band of considerations and the interests not only of the appellant but also of those that may be affected by the policy. In a nutshell, the respondent is enjoined by the Constitution and the law to act fairly and reasonably.</p> <p>  </p> <p> In the result, I concur with paragraphs 1, 2 and 4 of the order proposed by my Brother O'Linn, AJA. In respect of paragraph 3 of his order, I would make the following order instead:</p> <p>  </p> <p> 3. The matter is referred to the Respondent, the Minister of Environment and Tourism, to consider and decide after complying with the principles of natural justice including <em>the audi alteram partem</em> rule.</p> <p>  </p> <p>  </p> <p>  </p> <p> ________________________</p> <p> SHIVUTE, CJ.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <div> <p> <a class="sdfootnotesym" href="#sdfootnote1anc" name="sdfootnote1sym" id="sdfootnote1sym">1</a> <em>ELGIN Fireclays Ltd v Wehls</em>, 1947 (4) SA 744 AD at 749-750.</p> <p> <em>Minister Estates (Pty) Ltd v Killarney Hills Pty Ltd, </em>1979 (1) SA 621 (AD) at 624 B-H</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote2anc" name="sdfootnote2sym" id="sdfootnote2sym">2</a> <em>Dresselhaus Transport v Government of the Republic of Namibia </em>SA 20/2003, NmS</p> <p> delivered 11.5.2005 p44.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote3anc" name="sdfootnote3sym" id="sdfootnote3sym">3</a> <em>Chairperson of the Immigration Selection v Frank &amp; Another</em>, 2001 NR 1075 SC</p> <p> at 109E – 110B; 116F – 121G; 170F – 176I</p> <p> <em>Government of the Republic of Namibia v Sikunda</em>, 2002 NR 2003 SC at</p> <p> 226G – 229 F. <u>See also</u> High Court decision; 2001 NR 181</p> <p> <em>Mostert v Minister of Justice</em>, 2003 NR 11 SC at 22J – 29 D.</p> <p> <em>Cronje v Municipal Council of Mariental</em>, 2004(4) NLLP 129 at 175 – 182</p> <p> <em>Du Preez &amp; Another v Truth and Reconciliation Committee</em>, 1997(3) SA 204 AD</p> <p> at 23 I – 234I and 233F – 234.</p> <p> <em>President of RSA v SA Rugby Football Union and Others</em>, 2000(1) SA 1(CC) at</p> <p> 93I – 99D.</p> <p> <em>Bel Porto School Governing Body &amp; Others v Premier Western Cape &amp; Another</em>, 2002(3) SA</p> <p> 265CC at 291C – 295H, 300C – 316E.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote4anc" name="sdfootnote4sym" id="sdfootnote4sym">4</a> See <em>Bel Porto School Governing Body and Others v Premier Western Cape and Another</em> 2002(3) SA 265 (CC) at 332-333, paragraphs 209-212.</p> <p> For the relationship between the doctrine of legitimate expectation and Article 18, see also:</p> <p> <em>The Chairperson of the Immigration Selection Board v Frank</em>, Footnote 3 <em>supra</em>.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote5anc" name="sdfootnote5sym" id="sdfootnote5sym">5</a> <em>Kasiyamhuru v Minister of Home Affairs &amp; Others, 1999 (1) SA 643 (W) at 651 D-E.</em></p> <p> <em>Attorney-General, OFS v Cyril Anderson Investments (Pty) Ltd 1965(4) SA 628(A) at 639.</em></p> <p> <em>Shidiack v Union Government, 1912 AD 642 at 648</em></p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote6anc" name="sdfootnote6sym" id="sdfootnote6sym">6</a> Baxter, <em>Administrative Law</em>, at 434/435</p> <p> <em>Martin v Overberg Regional Services Counsel</em> 1991(2) SA 651 at 656 G-H</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote7anc" name="sdfootnote7sym" id="sdfootnote7sym">7</a> <em>Opperman v Uitvoerende Komitee van die Verteenwoordigende Owerheid van die Blankes</em></p> <p> <em>en Andere</em> 1991 (1) SA 372 (SWA) at 380 D-E.</p> <p> <em>Shidiack v Union Government (Minister of Interior)</em> 1912 at 642.</p> <p> <em>Wasmith v Jacobs,</em> 1987(3) SA 629 (SWA)</p> <p> <em>Yannakom v Apollo Club</em>, 1974 (1) SA 614 (AD) at 623 F-H.</p> <p> <em>Baxter, Administrative Law </em>at 433-439</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote8anc" name="sdfootnote8sym" id="sdfootnote8sym">8</a> See the decisions quoted by my brother Shivute, CJ in regard to the discretion to be exercised by the Court.</p> <p> See in addition: Erf 167, <em>Orchards cc v Greater Johannesburg Metropolitan Council &amp; An</em> 1999(1) SA 92 (SCA) at 109 C-G and the decision therein referred to.</p> <p> <em>Airoad Express (Pty) Ltd., v Chairman Local Road Transportation Board, Durban and Others</em>, 1986(2) SA 663 AD at 680 E-F in regard to bias, gross incompetence and/or where the outcome appears to be foregone.</p> <p> <em>The Namibian Health Clinics cc v Minister of Health and Social Services</em>, unreported judgment of the High Court of Namibia dated 10 September 2002.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote9anc" name="sdfootnote9sym" id="sdfootnote9sym">9</a> 2003(6) 407 (SCA) at 432 par 53</p> </div> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-cab1d91c4a75b3652c93671a97e35af751237d00bc7bc64a9475da62b9c95e8c"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p> CASE NO. SA 13/2004</p> <p> <strong>IN THE SUPREME COURT OF NAMIBIA</strong></p> <p> In the matter between:</p> <p>  </p> <p> <strong>WATERBERG BIG GAME HUNTING LODGE</strong></p> <p> <strong>OTJAHEWITA (PTY) LTD APPELLANT</strong></p> <p>  </p> <p> And</p> <p>  </p> <p> <strong>THE MINISTER OF ENVIRONMENT &amp; TOURISM RESPONDENT</strong></p> <p>  </p> <p>  </p> <p> <strong>Coram:</strong> Shivute, C.J., O’Linn, A.J.A., Chomba, A.J.A.</p> <p> <strong>Heard on</strong>: 17/06/2005</p> <p> <strong>Delivered on</strong>: 23/11/2005</p> <p> _______________________________________________________________</p> <p> <u><strong>APPEAL JUDGMENT</strong></u></p> <p>  </p> <p> <strong><u>O’LINN, A.J.A.:</u></strong> This judgment is divided for the purpose of easy reference into various sections namely:</p> <p>  </p> <p> I: INTRODUCTORY REMARKS</p> <p> II: THE CONFUSION ABOUT THE PARTIES INVOLVED, THE FAILURE TO COMPLY WITH RULE 53 OF THE RULES OF THE HIGH COURT AND ART 18 OF THE NAMIBIAN CONSTITUTION RELATING TO ADMINISTRATIVE JUSTICE AND THE DOCTRINE OF REASONABLE EXPECTATION.</p> <p>  </p> <p> III: THE LACK OF AUTHORITY TO DECIDE.</p> <p>  </p> <p> IV: CONCLUDING REMARKS</p> <p>  </p> <p> A: <u>INTRODUCTORY REMARKS</u></p> <p>  </p> <p> This is a judgment on appeal from the High Court to the Supreme Court. The appellant is Waterberg Big Game Hunting Lodge Otjahewita (Pty) Ltd, a company conducting business as a hunting and safari lodge with its main place of business at Farm Otjahewita 291, District Otjiwarongo, Namibia. It does business under the name “WABI Lodge” or “Wabi (Pty) Ltd”.</p> <p>  </p> <p> The appellant cited the Minister of Environment and Tourism in his official capacity as respondent, pursuant to his duties, powers and functions as set out in the Nature Conservation Ordinance No. 4 of 1975, particularly his duty to consider and decide on the importation of live game from South Africa in accordance with Section 49(1) of the said Ordinance as amended by Section 12 of Act 5 of 1996.</p> <p> The said parties will hereinafter be referred to respectively as “Waterberg Lodge” and “the Minister”. The Ministry of Environment and Tourism will be referred to as “the Ministry”. The present appeal is against a decision of the High Court of Namibia, per Mainga J, delivered on 2 July 2004, in which the learned judge dismissed an application by Waterberg Lodge for the review and setting aside of a decision by the <u>Cabinet</u>, <u>alternatively</u> the Minister, refusing applications by WABI Lodge for the importation from South Africa into Namibia of Mountain Reedbuck as per application dated 19.9.2002 and 27.9.2002.</p> <p>  </p> <p> Mr Frank SC appeared before us for the appellant and Mr Smuts SC, assisted by Mr Dicks, for the respondent.</p> <p>  </p> <p> II: <u>THE CONFUSION ABOUT THE PARTIES INVOLVED, THE REASONS FOR THE DECISION AND THE FAILURE OF THE RESPONDENT TO COMPLY WITH RULE 53 OF THE RULES OF THE HIGH COURT AND ART 18 OF THE NAMIBIAN CONSTITUTION RELATING TO ADMINISTRATIVE JUSTICE AND THE DOCTRINE OF “REASONABLE EXPECTATION</u>”.</p> <p>  </p> <p> The applications for the importation of the Mountain Reedbuck were made on the form provided by the “Ministry of Environment and Tourism” and referred to as Annexures B2 and A1 to the founding affidavit of Mr Mark Egger, in his capacity as a shareholder and managing director of “Waterberg Lodge”.</p> <p> It is unclear what precisely is meant by the term the “Ministry”. I will assume for the purpose of this judgment that the meaning of the term is as defined in the Oxford Advanced Dictionary of current English, namely: “Department of State under a Minister”.</p> <p>  </p> <p> It is further unclear on the available evidence, whether the Ministry or Mr Beytell, Director of Parks and Wildlife Management in the Ministry of Environment and Tourism, or Mr Beytell and the Ministry collectively, took the decision to decline the application. What is clear however is that neither the Cabinet nor the Minister took the decision. Furthermore there is no suggestion whatever that the Minister was consulted or was in any way a party to the decision-making process.</p> <p>  </p> <p> The Minister made no statement in the proceedings. However, Mr Barend Johannes Beytell, hereinafter referred to as Beytell, stated in his answering affidavit that he is “duly authorized to oppose this application <u>on behalf of the respondent</u> and to depose to this affidavit <u>on its behalf</u>.” (My emphasis added)</p> <p>  </p> <p> In the aforesaid answering affidavit Beytell cites the respondent in the heading to the affidavit as “Ministry of Environment and Tourism”. (My emphasis). It follows that the allegation by Beytell is thus in effect that he is authorized by the “Ministry” to oppose the application and is authorized by the “Ministry” “to depose to the affidavit on its behalf”.</p> <p> This adds to the confusion caused by correspondence from the “Ministry” as well as Beytell in reaction to the two applications by Waterberg Lodge under the name of Wabi Lodge and one application by Mr Dries Malan.</p> <p>  </p> <p> The letter dated 4 September 2002 but only signed by Mr S Simenda, acting Permanent Secretary of the Ministry of Environment and Tourism on 30.9.2002, reads as follows:</p> <p>  </p> <p> “Dear Mr Egger,</p> <p>  </p> <p> In response to your application to import Mountain reedbuck the following is our answer. After the bushbuck importation discussions, we in the Ministry reviewed the list of species that are imported and are busy with drafting a Cabinet submission making essentially the following recommendations:</p> <p>  </p> <ol><li> <p> That certain species which have been imported in large numbers, such as waterbuck and Black wildebeest, may be imported in future as stopping their importation now, serves no real purpose.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> That certain species such as Cape bushbuck and Mountain reedbuck, although they have been imported in small numbers, should no longer be allowed to be imported as they never occurred naturally in Namibia and some pose real biodiversity conservation risks because of potential inbreeding with Namibian subspecies. Similar springbok colour variants will no longer be allowed to be imported.</p> </li> </ol><p>  </p> <p> It was therefore decided to decline your application to import Mountain reedbuck. We trust that you accept our decision as being in the best interest of conservation in Namibia and want to again encourage you and others like minded to explore ways of promoting our rare Namibian species and conserving them effectively in a co-operative manner.</p> <p>  </p> <p> Yours sincerely</p> <p>  </p> <p> S Simenda – Acting Permanent Secretary.”</p> <p>  </p> <p> The letter dated 17<sup>th</sup> October 2002 by Mr Beytell to Mr Dries Malan reads as follows:</p> <p>  </p> <p> “Your letter dated 3<sup>rd</sup> October 2002 refers.</p> <p>  </p> <p> You are granted permission to continue transporting game from the RSA until 31 December 2002 as requested.</p> <p>  </p> <p> Your application to import 50 common bushbuck and Nyale has also been approved.</p> <p>  </p> <p> Please report the bushbucks specifically to our staff at the border post or the nearest office of the Ministry during official working hours. The bushbuck and Mountain reedbuck may not leave the farm which receives them without prior approval from the Ministry.</p> <p>  </p> <p> Please report back farms who received these species and members delivered at each.</p> <p>  </p> <p> Please note that a Cabinet submission has been prepared for the Minister to motivate the refusal of further import of these two species into Namibia. No further permits will be issued for import of common bushbuck and mountain reedbuck until we have received a response from Cabinet. Furthermore no extension of permits not fully utilised will be considered.</p> <p>  </p> <p> Yours sincerely</p> <p>  </p> <p> B Beytell</p> <p> Director</p> <p> Parks and Wildlife Management”</p> <p>  </p> <p> The last paragraph of the abovestated letter relating to Bushbuck and Mountain Reedbuck corresponds to some extent to the earlier letter by the Acting Permanent Secretary in so far as the intended submission to the Cabinet is concerned.</p> <p>  </p> <p> The latter letter by Beytell however gives the impression that the applications for import of Bushbuck and Mountain Reedbuck will be declined “<u>until we have received a response from Cabinet</u>”. (My emphasis added).</p> <p>  </p> <p> It was clearly implied in this letter that the decision by the Ministry was a preliminary and temporary measure pending the awaited response of the Cabinet to the submission by the “Ministry”.</p> <p>  </p> <p> This letter by Beytell indicates that at the time when Beytell wrote his letter dated the 17<sup>th</sup> October 2002 he was under the impression that the Cabinet was the decision maker.</p> <p>  </p> <p> Beytell in paragraph 48 of his aforesaid answering affidavit, says that the draft submission, Annexure B7 to his affidavit, was in fact never sent to Cabinet.</p> <p>  </p> <p> Why it was not sent after it was prepared and after Beytell had referred to it in his letter of the 17<sup>th</sup> October to Malan, was never explained. There was no indication whatever in the papers before the Court <em>a quo</em> and in this Court, that there was any “response” from the Cabinet as envisaged in Beytell’s letter to Malan dated 17<sup>th</sup> October 2002. That makes nonsense of Beytell’s said letter.</p> <p>  </p> <p> As a matter of fact there is no indication whether the Minister or the Cabinet was ever consulted in regard to the Ministry’s new policy to refuse the import of Bushbuck and Mountain Reedbuck.</p> <p>  </p> <p> Further confusion of this policy was created, when Beytell, according to Annexure BB6, annexed to his answering affidavit, on 29.8.2002 approved a permit to Dries Malan for the import of 100 Mountain Reedbuck on 31<sup>st</sup> October 2002.</p> <p>  </p> <p> The main difference between the Simenda letter of refusal purporting to have been written on 4<sup>th</sup> September and signed only on 30<sup>th</sup> September and Beytell’s allegations in his answering affidavit are the following:</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <table border="1" cellpadding="7" cellspacing="0" style="width:607px"><tbody><tr><td> <p> <u>The letter by Simenda</u></p> <ol><li> <p> The Ministry decided to decline the application.</p> </li> <li> <p> That certain species such as Cape bushbuck and Mountain Reedbuck, although they have been imported in small numbers, should no longer be allowed to be imported as they never occurred naturally in Namibia and <u>some</u> pose real bio-diversity conservation risks, because of <u>potential inbreeding with Namibian subspecies</u>. (My emphasis added)</p> </li> </ol></td> <td> <p> <u>Beytell's allegations</u></p> <p> 1. Beytell decided.</p> <p> 2. It is submitted that the term “inbreeding was mistakenly used and should read <u>crossbreeding</u>. It was intended in that way and would have been understood in that way. This did not form any part of my reasoning. I also admit that there is no potential for <u>crossbreeding</u> between Mountain Reedbuck and any Namibian subspecies. This likewise did not form part of my reasoning. The potential crossbreeding referred to in Annexure “A” to the applicant’s papers relates only to the Cape bushbuck mentioned therein. Any confusion in this regard is due to the unintended poor grammatical construction of paragraph (b) of the letter with regard to the decision sought to be reviewed.</p> </td> </tr></tbody></table><p>  </p> <p> It is astonishing that Beytell, who contends that he was the sole decision-maker and not the Cabinet, the Minister or the Ministry, did not write or draft or ensure the correctness of the letter signed by the Acting permanent Secretary Mr Simenda and purportedly drafted by Mr Erb, both of whom were obviously part and parcel of the Ministry of Environment and Tourism, as was Mr Beytell, the alleged sole decision-maker.</p> <p>  </p> <p> As the decision to refuse the import of Bushbuck and Mountain Reedbuck was a decision based on a new policy, which could be expected to be controversial and not acceptable to entrepreneurs in the live game trade and the hunting and tourist industry, one could expect that the decision-maker, whoever that was, would have taken care to explain correctly and carefully, the new policy and the reasons for the decision to Waterberg Lodge, being the first applicant to be refused on the ground of the new policy. He or she would not have left it to someone else, to do and say what he or she deems fit on the purported behalf of the decision-maker.</p> <p>  </p> <p> It is improbable that Simenda, a senior official, would just usurp Beytell’s power and function to write and formulate the letter of refusal and would suck the contents from his thumb. The letter was apparently formulated by Erb. Neither Simenda nor Erb submitted affidavits regarding circumstances in which the letter was written. The inference can thus be drawn that Simenda and/or Erb was not given the opportunity by respondent to submit an affidavit, because he could not support Beytell’s version.</p> <p>  </p> <p> The principle applicable was set out in various decisions and recently again applied by this Court.<sup><a class="sdfootnoteanc" href="#sdfootnote1sym" name="sdfootnote1anc" id="sdfootnote1anc"><sup>1</sup></a></sup></p> <p>  </p> <p> The formulation in the Elgin Fireclays case was as follows:</p> <p>  </p> <p> “It is true that if a party fails to place the evidence of a witness who is available and able to elucidate the facts, before the trial Court, this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him. See Wigmore, (section 285 and 286). But the inference is only a proper one if the evidence is available and if it would elucidate the facts”.</p> <p>  </p> <p> I may add that if the witness is not available, the party whose duty it is to place the evidence of such witness before Court, should place an explanation to that effect before Court.</p> <p>  </p> <p> In the instant case, no such explanation is before Court. This is the second time in the recent past when a respondent who is a Minister of the Namibian Government and/or his or her legal representative has failed to place such evidence before Court and where an adverse inference had to be drawn against the case put forward by such respondent. The previous case was that of <em>Dresselhaus Transport v the Government of Namibia.</em><sup><em><a class="sdfootnoteanc" href="#sdfootnote2sym" name="sdfootnote2anc" id="sdfootnote2anc"><sup>2</sup></a></em></sup></p> <p>  </p> <p> Not only do such tactics not avail the government in the litigation before the Court but they militate against the principle and policy of transparency to which the Government of Namibia has committed itself and by which the Government is bound.</p> <p>  </p> <p> Mr Beytell in his answering affidavit sets out a number of reasons for his decision, not contained in Simenda’s letter of refusal and according to Beytell, also conveyed by him to the representatives of Waterberg Lodge, including Mr Egger, the managing director of Waterberg Lodge, at a meeting subsequent to the taking of the decision to refuse an importation permit, but prior to the institution of proceedings. At this meeting Beytell did not offer a reconsideration of the applications.</p> <p>  </p> <p> When review proceedings was instituted in this case in accordance with Rule 53 of the Rules of the Namibian High Court, the notice was supported by the affidavits of Mark Egger, Mark Kutzner, Dr H.O. Reuter and Dr Herman Scherer in which the case of applicant was set out in detail.</p> <p>  </p> <p> It also cited the Ministry of Environment and Tourism as the respondent. This was probably induced by the fact that applicant at that stage was influenced by the Simenda letter of refusal, wherein it was indicated that the “Ministry” had taken the decision. However in applicant’s founding affidavit, the respondent was clearly cited as the “Minister of Environment and Tourism”.</p> <p>  </p> <p> In the notice, the respondent was also called upon in terms of Rule 53(1)(b),</p> <p>  </p> <p>  </p> <p> “to dispatch, within 15 days of receipt of the notice of motion, to the Registrar of this Honourable Court, the record of the proceedings and decisions sought to be corrected or set aside, <u>together with such reasons as they are by law required or desired to give and</u> that such respondents are to notify the applicants that they had done so”.</p> <p>  </p> <p>  </p> <p> It is common cause that the respondent did not submit any reasons at all in response to the aforesaid notice in terms of Rule 53(1)(b) supplementing or correcting the reasons contained in Simenda’s aforesaid letter of refusal. Only in the answering affidavit Beytell alleged that he and he alone took the decision to refuse the permit and that it was in no sense a “collective decision”.</p> <p>  </p> <p> The applicant as a consequence was placed at a disadvantage because it had no opportunity to respond in terms of Rule 53 (4) to these new reasons contained in respondent’s answering affidavit, unless applicant applied to Court for leave to submit additional replying affidavits in terms of Rule 6(5)(e) of the <u>general</u> rules applying to applications.</p> <p>  </p> <p> It may also be argued persuasively, that the implication of Rule 53 was that if reasons were given by a decision-maker at the time of notifying the decision to the applicant, the reasons so given by such decision-maker as appears from the record of the decision, should bind respondent in an application for review. The only excuse by Beytell for not supplementing or correcting the reasons given by Simenda is that he, Beytell orally explained his reasons to representatives of Waterberg Lodge <u>subsequent</u> to the taking of the decision and the notification thereof to applicant in Simenda’s letter signed on the 30<sup>th</sup> September 2002.</p> <p>  </p> <p> This is no justification for the failure. It may be that Beytell also relied on his contention in paragraph 47 of his answering affidavit to the effect that an applicant cannot claim a right to a permit and that part of Section 83(1) of Ordinance 4 of 1975 read with Section 12 of Act 5 of 1996 which provides <em>inter alia</em> that the decision-taker shall not be obliged to furnish any reasons for the refusal by it to grant or issue any permit. This section, if relied on, however does not afford any justification for such an attitude in view of Article 18 of the Namibian Constitution and the many decisions of this Court interpreting and applying that article.</p> <p>  </p> <p> It is further clear from the affidavits that even though the refusal was in terms of a new policy based on formerly undisclosed grounds, neither Beytell nor the Minister or any other official applied the <u><em>audi alterem partem</em> rule</u>, by notifying the applicant, before taking the decision, of the intended new policy and the grounds thereof and giving the applicant an opportunity to make representations in regard thereto before the decision was taken, as required by the aforesaid Article 18 of the</p> <p>  </p> <p>  </p> <p>  </p> <p> Namibian Constitution and the decisions of the Court in regard thereto.<sup><a class="sdfootnoteanc" href="#sdfootnote3sym" name="sdfootnote3anc" id="sdfootnote3anc"><sup>3</sup></a></sup></p> <p>  </p> <p> It was also pointed out by Mr Frank in argument that a considerable number of permits for the importation of Mountain Reedbuck had been issued prior to the disputed refusal to Waterberg Lodge, without any objection by the Ministry. That this is so, is quite clear from the affidavits and the documentary evidence placed before Court.</p> <p>  </p> <p> Furthermore, a number of factual allegations regarding the type of fencing of the property of Waterberg Lodge and the adjoining property, the water facilities available and the issues relating to biodiversity were only raised in Beytell’s answering affidavit. These allegations, held against Waterberg Lodge, were never put to the representatives of Waterberg Lodge, before the decision was taken, notwithstanding the fact that these allegations and arguments were clearly controversial and not admitted by Waterberg Lodge. Its representatives should have been apprised of such alleged facts and arguments based thereon, before the decision was taken and an opportunity given to controvert such facts before the decision was taken.</p> <p> Mr. Frank also pointed out correctly that the entity that decided, be it Beytell and or the Ministry, applied a pre-determined policy, which militated against the exercise of a discretion in each case as envisaged by Section 49 (I) of the Ordinance and Article 18 of the Namibian Constitution. If the policy was merely used as a guideline, it would have been in order if applied by the decision-maker, provided that the applicant had knowledge of the policy and had been given the opportunity to respond to it before the application was decided. In the circumstances applicable to this application, no discretion was in fact exercised as envisaged by section 49 (I) and article 18 of the Constitution.</p> <p>  </p> <p> Mr Frank further contended that in the circumstances pertaining to the application in this case, the applicant had a <u>legitimate or reasonable expectation</u> to be heard before the taking of the decision and to be granted the importation permit.</p> <p>  </p> <p> The ratio of this “doctrine of legitimate expectation” is consistent with the thinking and principles contained in Article 18 of the Namibian Constitution. The said doctrine, as well as Article 18, are based on reason and justice in the exercise of administrative discretion. The doctrine was overtaken by the later incorporation of Article 18 in the Namibian Constitution. Nevertheless the doctrine can serve a useful purpose in supplying some specifics to the broad and general norms set out in Article 18 and be used as a tool for the implementation of Article 18. As such it should be applied by our Courts in conjunction with Article 18.</p> <p>  </p> <p> Although neither Article 18 nor the decisions of he High and Supreme Court of Namibia require the application of the <em>audi alterem partem</em> rule in every case of the numerous routine administrative decisions that must be taken by officials from day to day, the rule must be applied to ensure administrative justice where for example facts adverse to an applicant are relied on by the decision-maker not known to the applicant and where the doctrine of “reasonable expectation” applies.</p> <p>  </p> <p> In my view the circumstances of this case are such that the <em>audi alterem partem</em> rule should have been applied. In addition there are several other shortcomings in the decision-making process referred to above which justify a setting aside of the decision.</p> <p>  </p> <p> Any doubt regarding the justification of such setting aside on the aforesaid grounds, is removed by the fact that Beytell had no legal authority to take the decision. As a consequence I have declined to deal in more detail with the failure to comply with Article 18, the <em>audi alterem partem</em> rule and the doctrine of legitimate expectation and will deal in the following section with this decisive and fatal ground for setting aside the decision.<sup><a class="sdfootnoteanc" href="#sdfootnote4sym" name="sdfootnote4anc" id="sdfootnote4anc"><sup>4</sup></a></sup></p> <p>  </p> <p> III: <u>THE LACK OF AUTHORITY TO DECIDE</u></p> <p> During argument before us, certain incisive questions were posed by members of the Court relating to the delegation of powers.</p> <p>  </p> <p> As the issue appeared to be decisive and Mr Smuts for the respondent appeared to have become uncertain of the correctness of his original submissions as contained in written heads of argument, the Court allowed respondent’s counsel to submit additional argument and gave leave to appellant’s counsel to reply thereto.</p> <p>  </p> <p> There then followed the filing of supplementary heads of argument which were very helpful and narrowed the field of dispute on this decisive issue. There was no further dispute about the legal requirements for a valid delegation as will appear from my further analysis of the legal issues.</p> <p>  </p> <p> Counsel for the respondent accepted that where “a delegation is raised, the onus rests upon the party asserting it, to prove it”. Counsel referred to the decision in <em>Chairman, Board of Tariffs and Trade v Teltron (Pty) Ltd</em>, 1997 (2) SA 25, (AD) where it was stated at p 31 F-G:</p> <p>  </p> <p> “The Board is, after all, a creature of statute, and where the statute creating it gives it the right to delegate its duties, there is an onus on the Board to show that that delegation has been properly made. It may well be that the onus has not been discharged by the mere allegation that there had been a delegation. The terms of the delegation have not been disclosed. There is furthermore no proof that the formalities required for a resolution to that effect had been complied with, that the requisite quorum had been present and that the resolution had been properly recorded. None of this has been done”.</p> <p>  </p> <p> Counsel also referred to other decisions and then concluded: “The approach of the Courts has thus been that a delegation is to be restrictively construed and that the person asserting it bears the onus of establishing the delegation as a question of fact”<sup><a class="sdfootnoteanc" href="#sdfootnote5sym" name="sdfootnote5anc" id="sdfootnote5anc"><sup>5</sup></a></sup>.</p> <p>  </p> <p> Mr Smuts further correctly conceded: “The overriding principle is that where the legislature has vested powers and functions in a subordinate authority it intends the power to be exercised by <u>that</u> authority…”<sup><a class="sdfootnoteanc" href="#sdfootnote6sym" name="sdfootnote6anc" id="sdfootnote6anc"><sup>6</sup></a></sup></p> <p>  </p> <p> After making the aforesaid concessions, counsel for respondent attempted to save its case by submitting, without any supporting authorities, that “the fact that the Legislature has taken the power from Cabinet and placed it in the hands of the Minister,…. would not in our submission mean that valid administrative action undertaken by the Cabinet and its predecessors would be undone and fall away by virtue of the amendment……”</p> <p>  </p> <p> I have no problem with this statement if restricted to <u>valid</u> administrative action, such as e.g., applications for permits granted or refused by an authority, properly authorized by law, to decide on such applications. Where the amending law however removes the power to decide from the previous entity to another entity, such as in the instant case, applications for permits <u>subsequent to such transfer of power</u>, will have to be decided by the new entity, unless that new entity validly, i.e. in terms of a law allowing such entity to delegate, has in turn delegated such power to another entity.</p> <p>  </p> <p> I also disagree with counsel for respondent where they submit: “A delegation is after all administrative action which, we submit, would remain in place until withdrawn by the new repository of power”. This contention applies to <u>subordinate legislation</u> such as regulations, because regulations are laws which, it may be argued, remain operative, until repealed. However, delegations of the power to decide on applications for the import of game must be distinguished from applications already decided by a previous delegatee, who acted at the time in terms of a valid delegation of power.</p> <p>  </p> <p> If prior delegations remain in place until the new entity appointed by law of Parliament revokes that delegation, it would make nonsense of Parliament’s <u>express</u> appointment of the new entity to exercise the power in question. This is even more apparent where as in this case, neither the new 1996 Act nor any other legislation empowered the Minister to delegate his/her power under Section 49(1) of Ordinance 4 of 1975 as amended.</p> <p>  </p> <p> Even if respondent counsel’s above submission was arguable, respondent’s case is fatally flawed because as appears from the following analysis, there is no sufficient proof of a lawful delegation to Beytell.</p> <p>  </p> <p> It is important to keep in mind that the respondent – being the Minister of Environment and Tourism, has not filed any opposing affidavit and there is no defence or explanation by the Minister before the Court <em>a quo</em> and before this Court.</p> <p>  </p> <p> Beytell, does not in his answering affidavit allege that he was authorized by the Minister to oppose the application on behalf of the Minister or to file the answering affidavit on behalf of the Minister. (See par. 1 of the affidavit).</p> <p>  </p> <p> Furthermore, Beytell nowhere sets out or purports to set out, the defence or opposition if any, of the <u>Minister</u> but only his own opposition to the application and his reasons for the disputed decision, allegedly taken by himself. In the circumstances the application for review must be regarded as unopposed by the respondent.</p> <p>  </p> <p> There can also be no doubt that, regardless of what the position was before the enactment and promulgation of Act 5 of 1996, the incumbent Minister of Environment and Tourism in terms of Section 12 of that Act, became the undisputed functionary to take decisions for the granting or refusal of any permit for the importation of game from South Africa in terms of Section 49(1) of Ordinance 4 of 75, unless of course, his authority was subsequently <u>lawfully</u> delegated to another official.</p> <p>  </p> <p> Although Beytell alleged that the said authority was lawfully delegated to him by the pre-independence Executive Committee and thereafter by the Cabinet of the pre-independence “Cabinet of the Interim Government” he could not and did not allege a delegation by the Minister in pursuance of Section 49(1) as amended by Section 12 of the aforesaid Act 5 of 1996, enacted by the Parliament of an independent Namibia.</p> <p>  </p> <p> Mr Beytell did allege a delegation in 1992 or as at 1992 by reference to a document marked BB9 containing a list of office bearers, in terms of which the “Head of the Permit Office” is indicated as the office bearer who could exercise the powers given under Section 49(1). Beytell claimed that he filled that position at the time.</p> <p>  </p> <p> The list is not signed by any person and there is no indication on it or in Beytell’s affidavit who had issued the list and in terms of which law it was issued. The vagueness of this and other allegations by Beytell in this application is indeed worrying. Whether or not he was not properly advised by his legal advisers, remains an open question.</p> <p>  </p> <p> Be that as it may. Beytell nowhere alleges or suggest that the Minister of Environment and Tourism delegated or purported to delegate his powers under Section 49 (1) of Ordinance 4 of 1975 to him in any capacity. The only statutory provision for delegations of authority referred to by counsel for respondent, was a general authority to delegate powers of the <u>Executive Committee</u> of the pre-independence period as contained in Sections 2-6 of the Delegation of Powers Ordinance 24 of 1973 as amended by Section 1 of Ordinance 20 of 1975.</p> <p>  </p> <p> It must be noted that Section 6(2) of Ordinance 24 of 1973 as amended contains a typical savings clause by providing –</p> <p>  </p> <p>  </p> <p> “Any power, authority or function delegated to any person in terms of the Ordinance repealed by Section (1) shall be deemed to have been delegated to such person in terms of this Ordinance”.</p> <p>  </p> <p>  </p> <p> There is no similar savings clause in Section 12 of Act 5 of 1996 and it consequently appears that at least as from the enactment and promulgation of Act 5 of 1996, the Minister of Environment and Tourism is the only authority to exercise the power under Section 49 (1) of Ordinance 4 of 1975 to grant or refuse permits for the importation of live game from South Africa into Namibia.</p> <p>  </p> <p> I have considered Articles 140 and 141 of the Namibian Constitution which may be regarded as serving the purpose of a savings clause dealing with the law in force at the date of Namibian Independence on 21/3/1990. The said Ordinance 24 of 1973 as amended was never expressly repealed or amended by Act of Parliament or declared unconstitutional by a competent Court and consequently remained in force in terms of Article 140(1) of the Namibian Constitution.</p> <p>  </p> <p> For the purpose of argument I will assume that any delegation of power validly ceded in terms thereof will remain valid even after Namibian Independence on 21 March 1990, unless expressly or impliedly revoked by Act of Parliament after Namibian Independence.</p> <p>  </p> <p> Neither respondent nor counsel for respondent relied on the aforesaid provisions of the Namibian Constitution for supporting the argument that any pre-independence delegation relating to Section 49(1) of Ordinance 4 of 1975 was not only in force at the date of independence but continued in force even after the promulgation of Act 5 of 1996.</p> <p>  </p> <p> Although Mr Beytell in his answering affidavit alleged that there was in fact a delegation of the power to his post by the pre-independence Executive Committee, he produced no documentary proof of such delegation.</p> <p>  </p> <p> Nevertheless, even if I assume for the purpose of argument that a proper delegation did in fact take place, and continued in force for some time after Namibian Independence by virtue of Article 140 and 141 (1) of the Namibian Constitution, I am convinced that such delegation could not survive the coming into force of Section 12 of Act 5 of 1996. This legislation unambiguously and expressly vested the power in the Minister of Environment and Tourism. There is no law in terms of which the Minister could delegate his power and no savings clause in terms of which an existing delegation could remain effective. There is also no allegation that the said Minister delegated or even purported to delegate his power.</p> <p>  </p> <p> It follows from the above that any purported exercise of the power by Mr Beytell or even the “Ministry” would be <em>ultra vires</em> their powers and null and void.<sup><a class="sdfootnoteanc" href="#sdfootnote7sym" name="sdfootnote7anc" id="sdfootnote7anc"><sup>7</sup></a></sup></p> <p>  </p> <p> IV: <u>CONCLUDING REMARKS</u></p> <p>  </p> <p> I have shown in the previous section that the purported decision of Beytell and/or the Ministry had to be set aside as null and void.</p> <p>  </p> <p> The question then arises what should be the further course of events. There are two possibilities:</p> <p>  </p> <p> 1. That the original application by Waterberg Lodge be referred to the Minister for consideration and decision. Or</p> <p>  </p> <p> 2. That the Minister is directed to grant the two applications by the applicant.</p> <p>  </p> <p> I have come to the conclusion that in the particular circumstances of this case the second option should be followed.</p> <p>  </p> <p> Since writing my proposed judgment, I have had the benefit of reading the proposed additional judgments of my learned brothers Shivute, CJ AND Chomba, AJA followed by incisive discussions between us.</p> <p>  </p> <p> We all agree that the appeal must succeed and that the Minister must be ordered to pay the cots.</p> <p>  </p> <p> We differ however in regard to the issue whether or not the Minister must be directed to grant the permits in question or whether the application must be referred to the Minister to consider the applications <em>de novo</em>. On this issue I was of the opinion that the Minister should be ordered to issue the permits applied for. My learned brothers on the other hand are of the opinion that the applications must be referred "back to the Minister to consider and decide after complying with the principles of natural justice including the <em>audi alterem partem</em> rule".</p> <p>  </p> <p> I will attempt to summarize the main points relied on by my learned brothers:</p> <p>  </p> <p> 1. The effect of my proposed order is that the Minister is penalised by not being given an opportunity to properly consider the applications and such penalization is not justified.</p> <p>  </p> <p> 2. The Minister did not take part in the previous decision making process and had no opportunity to do so as a result of the unilateral action of Mr. Beytell and/or the Ministry.</p> <p>  </p> <p> 3. The Minister did not file an opposing affidavit, probably because he did not know of the court action against him.</p> <p>  </p> <p> 4. The issues raised in the papers are complicated and in such a case the Court should not usurp or unduly interfere with the powers of the Minister to exercise his/her discretion. Such action will also be in conflict with the devision of powers between the Legislature, Executive and the Judiciary.</p> <p>  </p> <p> 5. The delays in the case are not substantial and was in any case not caused by delays on the side of the Minister and/or Ministry.</p> <p>  </p> <p> 5.1 The further delays in obtaining a binding final decision will not be unduly prejudicial to the applicant.</p> <p>  </p> <p> 6. To order the Minister to grant the application and issue the requested permit, without giving him the opportunity to exercise the discretion given to him under section 49(1) of the Nature Conservation Ordinance 4 of 1975 as amended by section 12(b) of Act 5 of 1996, will in effect deprive the Minister of his authority. Section 49(1) reads in effect:</p> <p>  </p> <p> "No person shall import … any game or wild animal … <u>except under a permit granted by the Minister</u>…"</p> <p>  </p> <p>  </p> <p> I regret to have to state that I continue to disagree with my learned brothers on the issue of referral to the Minister to consider the applications <em>de novo</em> and adhere to my original point of view.</p> <p>  </p> <p> I find it necessary however to supplement and then consolidate my original reasons in the light of the points made by my learned brothers. The supplemented reasons are as follows:</p> <p>  </p> <p> 1. This is a unique case which must be distinguished from the vast majority of administrative cases where the Minister or other office bearers who had to exercise an administrative discretion according to law, purported to exercise such function and such discretion, but had not done so properly, e.g. where such functionary had failed to comply with the empowering law and/or had failed to comply with art 18, 25, 40 and 41 of the Namibian Constitution.</p> <p> In this case the incumbent of the post of Minister had failed to consider and decide applications since the enactment of section 12 of Act 5 of 1996, which unequivocally placed on the Minister, the duty to decide applications for permits.</p> <p>  </p> <p> The question arises: Which of the above two failures, is the most serious failure of duty? In my respectfull view, the last type amounts to a total abrogation by disuse of the said power and function to decide and is the most serious of the two abovementioned failures.</p> <p>  </p> <p> 2. Neither the Minister nor the Courts should pass or attempt to pass the buck to the Ministry, or any official of the Ministry. This is so because the Namibian Constitution provided for and entrenched the Rule of Law. It abolished the system of <u>parliamentary</u> supremacy and replaced it with the principle of <u>constitutional</u> supremacy.</p> <p>  </p> <p> Although the constitution also incorporated the principle of the division of powers between Legislature, Executive and the Judiciary, it strengthened the role of the Courts compared with that role in the pre-independence dispensation.</p> <p>  </p> <p> When considering the relevance and applicability of decisions of the Courts prior to the implementation of the Namibia Constitution in 1989, the the Namibian Courts must always consider the impact, if any, of the Namibian Constitution on those decisions.</p> <p>  </p> <p> The same principle applies to decisions of South African Courts. Although the Namibian Courts are not bound by such decisions, their persuasive effect plays a part in the decisions of Namibian Courts.</p> <p>  </p> <p> Moreover, South African decisions based on the new South African Constitution which came into effect in 1996, must be considered in the light of the Namibian Constitution and differences if any between these constitutions.</p> <p>  </p> <p> The Courts play a pivotal role in the enforcement of the Chapter on fundamental human rights and freedoms. The freedoms included in article 21(1)(j) "the right to practice any profession, or carry on any occupation, trade or business" subject to "the law of Namibia, in so far as such law imposes <u>reasonable restrictions</u> on the exercise of the rights and freedoms conferred by the said sub-article, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of Namibia, national security, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an office".</p> <p>  </p> <p> It is not only the abolition of such rights which are prohibited in terms of article 25(1), but the <u>abridgment</u> of such rights. The Executive and the agencies of Government are included in this prohibition.</p> <p>  </p> <p> Sub-article (2) of article 25 provides that the Courts can be approached by aggrieved persons to enforce or protect a right which has been "<u>infringed or threatened</u>". This right is not limited to rights which have been abolished or abridged.</p> <p>  </p> <p> Sub-article (3) of Article 25 provides specifically that the Court "shall have the power to make all such orders as shall be <u>necessary and appropriate</u> to secure the applicants the enjoyment of the rights and freedoms conferred on them under the provisions of this Constitution, should the Court come to the conclusion that such rights and freedoms have been unlawfully <u>denied</u> or <u>violated</u>…."</p> <p>  </p> <p> Art. 18 provides for Administrative Justice and reads as follows:</p> <p>  </p> <p> "Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on such bodies and officials by common law and any relevant legislation and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal".</p> <p>  </p> <p> It must be clear from the above that the Honourable incumbent Minister had failed completely to decide on applications for permits for almost ten years. The incumbent Minister thus acted not only in breach of Ordinance 4 of 1975 as amended, but also in conflict with art. 18 of the Constitution, by not at all performing the functions and duties imposed by law for the benefit <em>inter alia</em> of persons in the position of WABI Lodge, carrying on the business of keeping a lodge on a farm stocked with game. The failure of the incumbent Minister becomes even more exposed when art. 40 and 41 of the Constitution is considered. These articles provide:</p> <p>  </p> <p> "Art 40 <u>Duties and Functions </u></p> <p> <u>Members of the Cabinet</u></p> <p>  </p> <p> The members of the Cabinet shall have the following functions:</p> <p>  </p> <ol><li> <p> <u>to direct, co-ordinate and supervise the activities of Ministries and Government Departments</u> including para-statal enterprises, and to review and advise the President and the National Assembly on the <u>desirability and wisdom</u> of any prevailing subordinate legislation, regulations or orders pertaining to such para-statal enterprises, regard being had to the public interest;</p> </li> </ol><p>  </p> <ol start="2"><li> <p> <u>to initiate bills</u> for submission to the National Assembly; …</p> </li> </ol><p>  </p> <ol start="3"><li> <p> …</p> </li> </ol><p>  </p> <ol start="4"><li> <p> to carry out such other functions <u>as are assigned to them by law or are incidental to such assignment</u>;</p> </li> </ol><p>  </p> <ol start="5"><li> <p> …</p> </li> </ol><p>  </p> <ol start="6"><li> <p> …</p> </li> </ol><p>  </p> <ol start="7"><li> <p> …..</p> </li> </ol><p>  </p> <ol start="8"><li> <p> ….</p> </li> </ol><p>  </p> <ol start="9"><li> <p> ….</p> </li> </ol><p>  </p> <ol start="10"><li> <p> ….</p> </li> </ol><p>  </p> <ol start="11"><li> <p> to issue <u>notices, instructions and directives</u> to facilitate the implementation and administration of laws administered by the Executive, subject to the terms of this Constitution or any other law; …"</p> </li> </ol><p>  </p> <p> "Art. 41: <u>Ministerial Accountability</u></p> <p>  </p> <p> All Ministers shall be <u>accountable individually</u> for the administration of their own <u>Ministries</u> and <u>collectively</u> for the administration of the work of Cabinet, both to the President and to Parliament."</p> <p>  </p> <p>  </p> <p> Section 12 of Act 5 of 1996, placing the function to consider and decide on applications for permits, squarely on the shoulders of the incumbent Minister, had to be initiated in Parliament by the incumbent Minister in terms of par (b) of Art. 40 of the Namibian Constitution. This specific provision, in conjunction with the general provision in par (a) "to direct, coordinate and supervise the activities of the Ministries", and par (k), the obligation "to issue, notices, instruction and directives to facilitate the implementation and administration of laws administrated by the Executive, makes it impossible for the Minister to plead ignorance of the law and to shield behind members of his Ministry for the Minister's failure to exercise his/her functions in accordance with the constitution and the law. But it must be said immediately in favour of the incumbent Minister, that he/she did not attempt to shift the blame.</p> <p>  </p> <p> The incumbent Minister just did not file any answering affidavit. This omission is aggravated by the fact that officials such as Simenda, the Acting Permanent Secretary and Erb, who were involved in the decision making process and/or the explanation thereof, did not submit any affidavits.</p> <p>  </p> <p> 3. It seems to me therefore with the greatest respect to my learned brothers, that the Court should not shift the blame on behalf of the Minister who failed to take the Court into his confidence. Similarly the Court should not make the excuse on behalf of the incumbent Minister, that he/she may not have known about the legal proceedings in which the applicant cited the Minister as the respondent. Although there were initial discrepancies in the formal citation which appear to be due to the negligence of applicant's attorneys, this point was not taken by counsel for the Minister in the appeal, obviously because it was without substance.</p> <p>  </p> <p> 4. It is obvious from the above that although Beytell should have known better, he did not intentionally usurp the powers and functions of the Minister. Rather, it was the incumbent Minister, himself/herself who abrogated his/her function and power <u>by disuse</u>.</p> <p>  </p> <ol start="5"><li> <p> In the circumstance it cannot be said that if my proposed order is issued by the Court, the Court would be usurping the function of the Minister. It is rather the incumbent Minister himself/herself who had the duty to function over many years, but who deprived himself/herself of the opportunity to function. The <u>Court</u> would consequently also not be "penalizing" the Minister by making an order as proposed by me, but rather rectifying a grave neglect by the said incumbent in this regard in accordance with the provisions of the Namibian Constitution above referred to.</p> </li> </ol><p>  </p> <p> Should the matter be referred to the Minister for his consideration <em>de novo</em>, he would probably rely on officials of his Ministry to come to a decision. Beytell, in his answering affidavit, demonstrated a strongly held opinion and adherence to a fixed policy decided upon by the Ministry. He will probably convey that opinion to the Minister when the Minister considers the applications. There is no indication that the Honourable Minister is an expert on the issue. The possibility of bias of the officials and the effect of the predetermined policy on the Minister, is rather strong.</p> <p>  </p> <ol start="5"><li> <p> The applicant/appellant will be severely prejudiced if the applicant/appellant is now compelled by the order of Court to put its case <em>de novo</em> to a Minister who had failed for many years to exercise the power and function allocated to him/her.</p> </li> </ol><p> It is not only the three years that have elapsed since the making of its application, but the time needed and the expenses entailed to get finality that have to be considered. This time and cost will not necessarily end with the decision of the Minister, because if the applications are again refused, review proceedings may again have to be instituted by the applicant, delaying finality for a further period of years.</p> <p>  </p> <p> After having had to endure the chaotic position of confusion and neglect caused by the actions and omissions of the Minister and his Ministry, the question must be squarely put and answered: Is it fair and reasonable to require the applicant to submit its case <em>de novo</em> to the said Minister and Ministry in such circumstances?</p> <p>  </p> <p> On the other hand, the granting of the said applications by the Minister in execution of the order of the Court, in due course, will not prejudice the State’s interest and duty to protect the bio-diversity of Namibian wild life but will enable the Minister and the Ministry, in conjunction with and in consultation with the joint stakeholders, to decide on a policy and procedures which will sufficiently protect such bio-diversity as well as the public interest and the interest of the wild game farmers, traders and businessmen and women. They are entitled in terms of the fundamental freedom enshrined in art. 21 (j) of the Namibian Constitution, to practice their trade, business or profession subject to the law of Namibia, in so far as such law imposes reasonable restrictions, on the exercise of such right or freedom.</p> <p>  </p> <p> Section 49(1) of Ord. 4 of 1975 and art. 18 of the Constitution, are part of the aforesaid law of Namibia. Section 49 does impose reasonable restrictions, such as veterinary control for the importation of any game and in issuing the permit, <u>additional</u> conditions may be imposed other than a total ban to safeguard biodiversity and to prevent the spread of sickness by imported game.</p> <p>  </p> <p> 7. This is not a case where the alleged complications of the issue of bio-diversity and the division of powers between the Legislature, the Executive and the Courts should be overemphasized.</p> <p>  </p> <p> 7.1 After all, several similar applications were apparently approved over many years for several applicants until the applications of applicants were suddenly refused, in execution of a new policy adopted by an unauthorized Ministry under the control of the Minister.</p> <p>  </p> <p> During this period the issue of protecting the biodiversity was never raised and at no stage was it alleged that the imported game had infected the indigenous game with any disease or had any adverse effect on such game in practice.</p> <p>  </p> <ol start="7"><li> <ol start="2"><li> <p> As to the alleged infringement of the principle and theory of division of powers and the alleged need not to unduly interfere with division of powers, the following points must be kept in mind:</p> </li> </ol></li> </ol><p>  </p> <ol><li> <p> <u>Art 1(3)</u> of the Constitution, merely provides that "the main organs of the State shall be the Executive, the Legislature and the Judiciary. The functions and powers of these organs are dealt with separately in other provisions of the constitution, but although distinct they overlap.</p> </li> </ol><p>  </p> <ol start="2"><li> <p> As to the power of one organ to interfere in the powers and functions of another, it is obvious that Parliament can and will interfere in the functions of the Executive.</p> </li> </ol><p>  </p> <p> As far as the Courts are concerned, the Courts are mandated specifically to interfere not only with the Legislature in regard to the constitutionality of laws, but with the Executive in regard to its actions and/or omissions which are in conflict with art. 18, 25, 40 and 41 and/or in conflict with the provisions of other laws.</p> <p>  </p> <p> It follows from the above that no principle of non-interference can be derived from the Namibian Constitution at least not in regard to "interference" by the Courts in the functions and powers of the Executive, in the case of acts and omissions in conflict with the Constitution and/or other applicable laws.</p> <p>  </p> <p> 8. There can be no doubt that the Minister and the Ministry, although not <u>abolishing</u> the freedom of the applicant/appellant to conduct a business of its choice, it has by its actions and omissions "<u>abridged</u>" such right in terms of art. 25(1) or "<u>infringed</u>" it in terms of art. 25(2) of the constitution. That abridgment or infringement will be exacerbated by the Court, if the Court prolongs the agony by referring the matter to the Minister for consideration <em>de novo</em>.</p> <p>  </p> <p> 9. The Court has a wide discretion as to whether it should refer the matter back to the functionary who had failed to exercise his/her function properly, for a rehearing, or whether the Court should direct the functionary to issue an order as defined by the Court in order to achieve an expeditious, reasonable and just solution.<sup><a class="sdfootnoteanc" href="#sdfootnote8sym" name="sdfootnote8anc" id="sdfootnote8anc"><sup>8</sup></a></sup></p> <p>  </p> <p> However, in the present case, where the incumbent Minister had failed to perform the function allocated to the Minister by law, without any excuse or justification, it will, in my respectful opinion not only amount to a failure to act in accordance with the letter and spirit of articles 12, 18, 21(j) and 25 of the Namibian Constitution, but also a failure of justice, should this Court refer the applications to the said Minister for a hearing and decision in which the applicant is expected to submit to such process at this late stage.</p> <p>  </p> <ol start="10"><li> <p> I have taken note of the decision in <em>Minister of Environmental Affairs and Tourism &amp; Ors v Phamhill Fisheries Pty Ltd</em> <sup><a class="sdfootnoteanc" href="#sdfootnote9sym" name="sdfootnote9anc" id="sdfootnote9anc"><sup>9</sup></a></sup> quoted by my learned brother Shivute CJ in which the Court held:</p> </li> </ol><p>  </p> <p> "Judicial deference is particularly appropriate where the subject-matter of an administrative action is very technical or of a kind in which a Court has no particular proficiency…"</p> <p>  </p> <p>  </p> <p> This is obviously only one of the considerations.</p> <p>  </p> <p> Furthermore, a lot of material and opinions have already been placed on record relating to the issues involved and in regard to the applicable facts relevant in this particular case.</p> <p>  </p> <p> It is accepted that the biodiversity of the Namibian wildlife must be protected but whether or not, accepting that principle, the sudden adoption of a policy behind the scenes and arbitrarily choosing the applicant as the first victim, is justified in the case before us, is a completely different issue. On this issue the Court is surely in as good a position as the Minister to decide, if not in a better position.</p> <p>  </p> <p> Furthermore, there is no evidence or indication at all, that the Minister is an expert or would have other unbiased expertise available to place him in a better position to decide than the Court, on the issues, factual and legal, which have emerged in this case.</p> <p>  </p> <p> After all, the main consideration as stated by my learned brother Shivute CJ, on the authority of the case law, is - <u>"In essence … a question of fairness to both sides".</u></p> <p>  </p> <p> My learned brother Shivute, CJ, has also adopted the <em>dictum</em> in the decision of <em>Minister of Environmental Affairs &amp; Tourism v Phambili Fisheries (Pty) Ltd</em> wherein it was stated:</p> <p>  </p> <p> ""Judicial deference does not imply judicial timidity or an unreadiness to perform the judicial function. It simply manifests the recognition that the law itself places certain administrative action in the hands of the Executive, not the Judiciary."</p> <p>  </p> <p> This broad principle is subject to the provisions of the Namibian Constitution discussed <em>supra</em>.</p> <p>  </p> <p> Furthermore, the problem in this case is that the Minister had failed completely to perform the "administrative action" placed in the hands of the Executive by the Namibian Constitution and section 49(1) of the Nature Conservation Ordinance, as amended by Act of Parliament.</p> <p>  </p> <p> In such circumstances the Judiciary must not fail to make the appropriate order because of "judicial timidity" or "an unreadiness to perform the judicial function".</p> <p>  </p> <p> I fear that a decision by this Court ordering the applications to be heard de novo by the incumbent Minister, may well be seen by many as "judicial timidity" or "an unreadiness to perform the judicial function".</p> <p>  </p> <p> For these reasons I adhere to the order proposed by me in my draft judgment being:</p> <p>  </p> <p> 1. The appeal succeeds.</p> <p>  </p> <p> 2. It is declared that the refusal by Mr Beytell and/or the Ministry of Environment and Tourism to grant the appellant’s applications of 19<sup>th</sup> and 27<sup>th</sup> of September 2002 for the importation of Mountain Reedbuck, is <em>ultra vires</em> and null and void.</p> <p>  </p> <p> 3. The respondent, the Minister of Environment and Tourism, is directed to issue the permits applied for.</p> <p>  </p> <p> 4. The respondent is ordered to pay appellant’s costs of the appeal as well as that in the Court <em>a quo</em>.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> <u>________________________</u></p> <p> O’LINN, A.J.A.</p> <p>  </p> <p>  </p> <p>  </p> <p> <strong>ON BEHALF OF THE APPELLANT MR T J FRANK SC</strong></p> <p> <strong>Instructed by: ENGLING, STRITTER &amp; PARTNERS</strong></p> <p>  </p> <p> <strong>ON BEHALF OF THE RESPONDENT MR D F SMUTS SC</strong></p> <p> <strong>ASST. BY MR G DICKS</strong></p> <p> <strong>Instructed by: THE GOVERNMENT ATTORNEY</strong></p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> CASE NO.: SA 13/2004</p> <p>  </p> <p>  </p> <p> IN THE SUPREME COURT OF NAMIBIA</p> <p>  </p> <p>  </p> <p> WATERBERG BIG GAME HUNTING LODGE</p> <p> OTJAHEWITA (PTY) LTD APPELLANT</p> <p>  </p> <p>  </p> <p> versus</p> <p>  </p> <p>  </p> <p> THE MINISTER OF ENVIRONMENT &amp; TOURISM RESPONDENT</p> <p>  </p> <p>  </p> <p>  </p> <p> CORAM: Shivute, CJ, O'Linn, AJA, <em>et</em> Chomba, AJA.</p> <p>  </p> <p> HEARD ON: 17/06/2005</p> <p>  </p> <p> DELIVERED ON: 23/11/2005</p> <p> <u>____________________________________________________________________________</u></p> <p>  </p> <p> APPEAL JUDGMENT</p> <p> <u>____________________________________________________________________________</u></p> <p>  </p> <p> <u>Chomba, A.J.A.:</u> I have had the opportunity of perusing the judgment prepared with great erudition by my brother O'Linn in this appeal and I therefore entertain no scruples with the verdict he has arrived at that the appeal should be allowed. I have also read the judgment of my brother Shivute C.J. and note that while concurring, as I do with the overall verdict of upholding the appeal, the Chief Justice does not agree with the order proposed by our brother O'Linn that the Minister of Environment and Tourism, (the Minister), must now grant a permit to the Respondent, Waterberg Big Game Hunting Lodge Otjahewita PTY Ltd. (Waterberg) pursuant to the rejected applications which gave rise to the proceedings herein. Instead the Chief Justice has counter-proposed that the applications be referred to the Minister for him to consider and make a decision thereon after complying with the principles of natural justice including the <em>audi alteram partem </em> rule.</p> <p>  </p> <p> Before I pronounce my opinion on this important matter on which my two brothers have expressed divergent views, I propose first to examine the factual situation as it emerges from the affidavits of those who assert that the decision of refusal should be reviewed and set aside as well as from the affidavits of the opponents of the requested review.</p> <p>  </p> <p> The motion for review or setting aside the decision whereby the application by Waterberg was refused was principally founded on the affidavit of Mr. Mark Egger (Mr. Egger), a shareholder and managing director of Waterberg. In the ensuing paragraphs I shall highlight only those salient aspects of Mr. Egger's affidavit, which are relevant to the proposed controversial order. Mr. Egger deposed in paragraph 8 that during September 2002 Waterberg, in response to an advertisement, lodged an application with the Ministry of Environment and Tourism (the Ministry). The application, which was annexed to Mr. Egger's affidavit and was marked "A1", was headed "Application to import wild animals or plants or their parts, derivatives and products". The items of intended importation were indicated as 50 live mountain reedbuck. In the same month of September 2002 Waterberg submitted a second import application for 40 more live mountain reedbuck. All the 90 animals were intended to be imported from the Republic of South Africa.</p> <p>  </p> <p> By letter marked "H" and dated 4<sup>th</sup> September 2002 but said to have been signed on 30<sup>th</sup> September 2002, it would appear that both applications were refused. The negative letter "H" was signed by one, S. Simenda, designated as the Acting Permanent Secretary of the Ministry. It would appear also that upon receipt of "H" the same was handed over to a Mr. Mark Kutzner, a legal practitioner acting for Mr. Egger. Mr. Kutzner took up the matter of the rejected applications with a Mr. Ben Beytell who was described by Mr. Egger as belonging to the Directorate of Scientific Services. This Mr. Ben Beytell, as will be apparent later herein, is in fact Mr. Barend Johannes Beytell, Director: Parks and Wildlife Management in the Ministry. Mr. Beytell is said to have explained to Mr. Kutzner that the applications were rejected because of the proximity of Waterberg's land to the Waterberg Plateau Game Park.</p> <p>  </p> <p> In paragraph 15.1 of his affidavit Mr. Egger averred that the correct functionary who was required to consider and decide on the applications did not do so. He speculated that in terms of the applicable ordinance the application ought to have been considered and determined by the Cabinet or the Ministry/Minister, adding that the decision on the applications was in fact made by Mr. Beytell, officials of the Ministry or the Acting Permanent Secretary of the Ministry. He further opined that in terms of the contents of the letter "H' the decision was the product of collective action. He then concluded that the proper functionary who should have considered the application and made the decision had abrogated his powers.</p> <p>  </p> <p> In response to the depositions of Mr. Egger as summarised above, Mr. Barend Johannes Beytell's affidavit discloses the following. He, Mr. Beytell, was at the material time the Director: Parks and Wildlife Management in the Ministry. He had rendered 25 years of service in the Ministry and declared that he had the requisite professional qualifications and experience relevant to his position of Director. He deposed that in terms of Section 49(1) of the ordinance as amended, the power to grant permits for the importation of wild game was vested in the Minister. The provisions of Section 49(1) notwithstanding, he declared in paragraph 8 of his affidavit, thus:</p> <p>  </p> <p> "As is apparent from what is stated below the power to grant or refuse permits under Section 49(1) has been delegated to me by virtue of the position I occupy. The applicant's application served before me and after duly and carefully considering the application within the context of appropriate and relevant conservation and environmental principles and guidelines, particularly in furtherance of the biological diversity of Namibia, I decided to refuse it."</p> <p>  </p> <p> In paragraph 24 he added that the discretion exercisable under Section 49(1) by the Ministry "was exercised by me in the present matter." The assertion of Mr. Beytell having been the decision maker in this context permeates through a number of paragraphs in his affidavit such as paragraphs 26, 51.5, 52.1, 54.2, 54.3, 56 and 57, to mention some only. In paragraph 54.2 he asserted, <em>inter alia, </em>"I deny that it was a collective decision in any sense."</p> <p>  </p> <p> Emphasing his claim that the power to make decisions pursuant to Section 49(1) was delegated to him, Mr. Beytell deposed as follows in paragraph 52.1:</p> <p>  </p> <p> "As Director, Parks and Wildlife management, I am Head of the Permit Office, I'm delegated to take decisions of this nature. The delegation to do so dates back to pre-independence times. I am aware of the decision of the then Cabinet of the Interim Government delegating the power to the equivalent of my position......"</p> <p>  </p> <p> Having highlighted the salient aspects of the depositions made by the dramatis personae, so to speak, namely Mr. Egger on one hand and Mr. Beytell on the other, I shall now proceed to consider the question whether the order that this court should make should be either that the Minister should be ordered to grant Waterberg a permit as my brother O'Linn proposes to do or be ordered to consider the application <em>de novo </em>as the Chief Justice counter - proposes.</p> <p>  </p> <p> The resume of the averments of Mr. Egger shows that he was quite assertive that the proper functionary did not consider and determine Waterberg's applications. He thereafter speculated that the decision seemed to have been made by Cabinet, officials of the Ministry, Mr. Beytell or that it was a collective decision. However, whatever doubts were raised by Mr. Egger have been put to rest by Mr. Beytell. The latter deposed that the decision was not made by Cabinet nor was it a collective decision but that it was made by himself. On this issue therefore Mr. Beytell's categoric assertion is to be preferred to that of Mr. Egger which was speculative.</p> <p>  </p> <p> Mr. Beytell's further assertions, as is shown hereinbefore, are that he was the one upon whom the import application were served; that the power to grant or refuse import permits for wild game was delegated to whoever held the position that he had at the material time and ergo that the power was exercisable, and was in fact exercised, by him; that the delegation was done before Namibia's independence; and that he was personally aware that the Cabinet of the Interim Government effected the delegation of the power. All these assertions are equally uncontroverted.</p> <p>  </p> <p> Flowing from the foregoing, I propose to consider the assertion by Mr. Egger that the functionary required to exercise the power of granting import permits had abrogated that power. Was that in fact the case? During the period before the Nature Conservation Amendment Act, No.5 of 1996 was enacted, Section 49(1) of the Nature Conservation Ordinance 1975 provided that the function of issuing import permits for Wild Game was exercisable by the Executive Committee. The 1996 Amendment transferred the function from the Executive Committee to the Minister.</p> <p>  </p> <p> The foregoing notwithstanding, according to the deposition of Mr. Beytell, before Independence the Cabinet of the Interim Government delegated the function to an official of the Ministry holding a position equivalent to that which Mr. Beytell held at the material time. That meant that although the law at that time vested the function in the Executive Committee, which was in fact the Cabinet of the day, by virtue of the directive of the Cabinet of the Interim Government, the discharge of the function became that of an official in the Ministry. It is evident that even after the change of the law in 1996 the <em>de facto</em> functionary continued to be the ministry official holding the position of Director. That that was so can be inferred from the deposition of Mr. Beytell at the tail end of paragraph 52.1 where he stated-</p> <p>  </p> <p> "My delegated powers have never been contested by this applicant (or anyone else for that matter) who addressed applications to my office......"</p> <p>  </p> <p> This assertion quite clearly suggests that it is not only in the instant case that Mr. Beytell exercised the so-called delegated power.</p> <p>  </p> <p> To the question I have posed earlier, namely whether the Minister abrogated his power and thereby allowed Mr. Beytell to exercise it, I can now confidently hold and find as a fact that there was no abrogation. The truth of the matter is that the Cabinet - although in my view quite wrongly and unlawfully - purported to divest the Minister's precursor, the Executive Committee, of the said power and to transfer it to the holder of the office of Director.</p> <p>  </p> <p> I take judicial notice that the Cabinet, as a collective body of Ministers and headed by the President, is a superior body vis-à-vis the position of Minister. In the event, it is not surprising that Ministers holding the portfolio of Environment and Tourism (or any of its predecessors) have obligingly let a wrong ministry official exercise the power, which statutorily belongs to them. They had no choice but to defer to the directive of the superior body. To this end therefore the Minister's failure to personally consider Waterberg's applications cannot be attributed to dereliction of duty on his part.</p> <p>  </p> <p> Moreover in the instant case there is not a shred of evidence that the applicant's import applications were at any stage placed before the Minister for consideration. Rather, the factual situation is that Mr. Beytell received the applications and, believing that the power to act on the applications belonged to him through delegation, went ahead and made the disputed decision. It is stated that the proceedings in this case must "obviously" have been brought to the Minister's attention by the Government Attorney. The reason given for this supposition is that it was the Minister who was cited as the Respondent in those proceedings. In so far as I have pored over the affidavit evidence in this matter, I find not a tittle of support for that supposition. Furthermore, it is beyond peradventure that the Minister has not personally participated in these proceedings either in the court <em>a quo </em>or in this court.</p> <p>  </p> <p> It is common cause that Section 49(1) of the Ordinance vests a discretion in the Minister in so far as consideration of import permits is concerned. He can either allow or refuse such an application. To order the Minister to grant a permit to Waterberg in the present case, would in my view, unjustifiably deprive him of the statutory authority vested in him by Section 49(1). Since to my mind the Minister did not abrogate his power and as he has not personally participated in these proceedings, it would, in my view, be unduly highhanded to deprive him of his discretion.</p> <p>  </p> <p> What is more, there is in this matter a heated conflict emerging from expert evidence proffered by the proponents of the motion to review or set aside as against the evidence of those opposed to the motion. This is particularly so on whether or not the importation of mountain reedbuck can pose a danger to the genetic integrity of Namibia's indigenous wildlife populations. It is consequently my firm view that it is in the wider interest of Namibia that the Minister be presented with information on the pros and cons of this issue in order to enable him to prudently exercise his statute given discretion.</p> <p>  </p> <p> A notion has been canvassed that to let Waterberg's applications be submitted for reconsideration at this stage would be unfair to it. It is so canvassed on the ground that Waterberg has already waited for a very long time for a favourable decision. The insinuation is that executive red tape has occasioned the delay. The record of appeal, to the contrary, shows that swift action was taken by the executive. The facts in this case show that the two applications were lodged in September 2002. The letter "H" conveying the negative decision was dated 4<sup>th</sup> September, but only signed on 30<sup>th</sup> September 2002. It was faxed to Waterberg on October 1, 2002. Waterberg was aggrieved by the negative decision and a Notice of Motion was filed on its behalf on 4<sup>th</sup> December 2002. Service of the motion was effected on 6<sup>th</sup> December 2002. A notice to oppose dated 30<sup>th</sup> December 2002 was filed on 7<sup>th</sup> January 2003. Allowing for the filing of affidavits by the respective parties, the notice for set down was dated 7<sup>th</sup> August 2003 and it gave the date of hearing as 10<sup>th</sup> November 2003. There followed an amended Notice of set down which designated a new date of hearing as 28<sup>th</sup> November 2003. The Motion was heard on the last mentioned date but the judgment was reserved and was only given on 2<sup>nd</sup> July 2004. Once again Waterberg was aggrieved and consequently a notice of appeal was filed on its behalf on 28<sup>th</sup> July 2004. The appeal was heard in this court on 17<sup>th</sup> June 2005. Thus it can be seen that what has distanced the applicant from receiving an expected favourable decision was not any delay on the part of the Ministry. Rather, it was the slow judicial process, which has caused it. For this further reason I believe that to direct the Minister to grant a licence on the basis that Waterberg has had a long time of waiting would be tantamount to misplacement of blame, if any blame at all can be said to be justified.</p> <p>  </p> <p> In the final analysis I hold that the Minister did not abrogate his power and because the Minister has not participated in the proceedings I concur with the Chief Justice that the Minister be directed to hear and determine Waterberg's applications afresh. In doing so the Minister must comply with the <em>audi alterum </em>rule and he is also hereby enjoined to act fairly and reasonably according to the dictates of Article 18 of the Namibian Constitution.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> _______________________</p> <p> <strong>CHOMBA, AJA</strong></p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p> CASE NO. SA 13/2004</p> <p> <strong>IN THE SUPREME COURT OF NAMIBIA</strong></p> <p> In the matter between:</p> <p>  </p> <table border="0" cellpadding="7" cellspacing="0" style="width:600px"><tbody><tr><td> <p> WATERBERG BIG GAME HUNTING LODGE</p> <p> OTJAHEWITA (PTY) LTD</p> </td> <td> <p>  </p> <p> APPELLANT</p> </td> </tr></tbody></table><p>  </p> <p> And</p> <p>  </p> <table border="0" cellpadding="7" cellspacing="0" style="width:600px"><tbody><tr><td> <p> THE MINISTER OF ENVIRONMENT &amp; TOURISM</p> </td> <td> <p> RESPONDENT</p> </td> </tr></tbody></table><p>  </p> <p> Coram: Shivute, CJ, O’Linn, AJA, Chomba, AJA</p> <p> Heard on: 17/06/2005</p> <p> Delivered on: 23/11/2005</p> <p>  </p> <p> <u><strong>APPEAL JUDGMENT</strong></u></p> <p>  </p> <p> <u>SHIVUTE CJ:</u> I have had the advantage of reading the judgment of my Brother O'Linn, AJA and I respectfully agree that the appeal should be upheld for the reasons set out in his judgment. I furthermore agree that the respondent should be ordered to pay the appellant's costs. I, however, find myself unable to agree with that part of the order proposed by my Brother O'Linn directing the respondent to grant the permit to the appellant and I shall briefly set out the reasons for so disagreeing.</p> <p>  </p> <p> The application for a permit was made and stood to be considered pursuant to the provisions of section 49(1) of the Nature Conservation Ordinance, 4 of 1975 (the Ordinance). The section as amended by section 12(b) of Act 5 of 1996 (the Act) and insofar as it is relevant reads:</p> <p>  </p> <p> "No person shall import … any game or wild animal … except under a permit granted by the Minister: …"</p> <p>  </p> <p>  </p> <p> "Minister" is defined in the Ordinance (as amended by section 1 of the Act) to mean the Minister of Environment and Tourism.</p> <p>  </p> <p> It was common ground between the parties that the decision to refuse the applicant a permit to import mountain reedbuck from South Africa was not made by the Minister. As my Brother O'Linn, AJA, correctly found, there was furthermore no allegation that the Minister was consulted or at any rate was part of the decision-making process. On the contrary, Mr. Beytell the Director: Parks and Wildlife Management in the respondent's Ministry pertinently contended that he was the sole decision maker. Apart from Mr. Beytell's <em>ipsissima verba</em>, there was no documentary proof of a valid delegation of the powers to consider and decide applications for a permit to the office of which Mr. Beytell is the head or to any other office in the respondent's Ministry for that matter.</p> <p>  </p> <p> As Botha JA stated in <em>Attorney-General, OFS v Cyril Anderson Investments (Pty) Ltd</em> 1965(4) SA 628(A) at 639 C-D:</p> <p>  </p> <p> "The maxim <em>delegatus delegare non potest</em> is based upon the assumption that, where the legislature has delegated powers and functions to a subordinate authority, it intended that authority itself to exercise those powers and to perform those functions, and not to delegate them to someone else, and that the power delegated does not therefore include the power to delegate. It is not every delegation of delegated powers that is hit by the maxim, but only such delegations as are not, either expressly or by necessary implication, authorised by the delegated powers."</p> <p>  </p> <p>  </p> <p> It follows then that in the present case the Minister is the proper functionary to exercise the powers conferred on him or her by section 49(1) of the Ordinance. It was partly on that ground that my Brother O'Linn, found that the purported exercise of the discretionary powers vested in the Minister by Mr. Beytell in the absence of a lawful delegation was <em>ultra vires</em> and null and void, a finding that I respectfully endorse.</p> <p>  </p> <p> In the light of this finding that in itself disposes of the appeal, I consider that the proper functionary should be afforded an opportunity to consider and decide on the application, taking into account policy guidelines, the law and the merits of the appellant's application. This is particularly imperative in the light of the consideration that the repository of powers has not deposed to an affidavit setting out his own position <em>vis-à-vis</em> the stance taken by Mr. Beytell. Although obviously an employee of the Respondent's Ministry, Mr. Beytell seemingly did not, as O'Linn, AJA found, have authority to oppose the application before the High Court on behalf of the Minister and to depose to the answering affidavit on his behalf. In paragraph 1 of his answering affidavit, Mr. Beytell, <em>inter alia</em>, states:</p> <p>  </p> <p> "I am duly authorised to oppose this application on behalf of the respondent and to depose to this affidavit on <u>its</u> behalf." (Emphasis added.)</p> <p>  </p> <p>  </p> <p> The respondent is cited in Mr. Beytell's affidavit as the <u>Ministry</u> of Environment and Tourism. Although Mr. Mark Egger, who deposed to a replying affidavit on behalf of the appellant, stated that he did not dispute paragraph 1 of Mr. Beytell's answering affidavit, this attitude must be understood in the context of the apparent confusion or uncertainty about which functionary in the respondent’s Ministry dealt with the application and the appellant's contention that the decision to refuse it a permit was essentially a collective decision made by the "Ministry" as conveyed by Mr. Simenda in the letter dated 4 September 2002. That position may well explain the initial citation of the respondent in the Notice of Motion as the "Ministry" rather than the Minister of Environment and Tourism. The respondent was, however, properly cited in Mr. Egger’s founding affidavit.</p> <p>  </p> <p> I do not share the view apparently taken that the respondent should, in effect, be penalised, <em>inter</em> <em>alia</em>, for having allegedly abrogated his power and, in effect, for having allowed Mr. Beytell to act on his behalf contrary to the relevant provisions of the Ordinance. The finding that the respondent had allowed Mr. Beytell to act on the respondent’s behalf presupposes that the respondent had been aware at all relevant times that the powers to consider and decide on the applications for permits were conferred on him alone <u>and</u> that, contrary to the contention advanced by Mr. Beytell, there had not been a lawful delegation of these powers to any official in the respondent’s Ministry. In my respectful view, there is no evidence on the papers before us to support such a finding. On the contrary, the evidence presented by Mr. Beytell in this regard was that the power to decide on applications for a permit had allegedly been delegated to the head of the permit office (headed by Mr. Beytell at the time of the application) before Independence and that the head of the permit office had always exercised the power in question. It seems to me that Mr. Beytell acted on a <em>bona fide</em> but mistaken assumption that as the head of the permit office, he was empowered to deal with applications under section 49(1) of the Ordinance.</p> <p>  </p> <p> If Mr. Beytell who says that he had worked for the respondent’s Ministry, including its constitutional predecessor, for more than 25 years and that he was “fully conversant” with the provisions of the Ordinance can be so utterly mistaken, can the possibility that the respondent <u>may</u> have been unaware that he was the only functionary empowered to determine applications entirely be excluded? I think not. It does not therefore seem to me to be right that a penalty should, in effect, be imposed on the respondent by being directed to grant the permit before he has had the time to consider the application and when he has evidently not been heard by the Court.</p> <p>  </p> <p> In any event, I am of the view that although there has been a lapse of three years since the <u>submission</u> of the application, it would not be fair to <u>both</u> sides, in the circumstances of this case, for the Court to direct the respondent to grant the permit for the following additional reasons:</p> <p>  </p> <p> When setting aside a decision of an administrative authority, a review Court will not, as a general rule, substitute its own decision for that of the functionary, unless exceptional circumstances exist. <em>SA Jewish Board of Deputies v Sutherland NO and Others</em> 2004(4) SA 368 at 390B.</p> <p>  </p> <p> Thus, in <em>Masamba v Chairperson, Western Cape Regional Committee, Immigrants Selection Board and Others </em>2001 (12) BCLR 1239 (C), the Cape Provincial Division of the High Court of South Africa stated at 1259D-E:</p> <p>  </p> <p> "The purpose of judicial review is to scrutinise the lawfulness of administrative action in order to ensure that the limits to the exercise of public power are not transgressed, not to give the courts the power to perform the relevant administrative function themselves. As a general principle, therefore, a review court, when setting aside a decision of an administrative authority, will not substitute its own decision for that of the administrative authority, but will refer the matter back to the authority for a fresh decision. To do otherwise would be contrary to the doctrine of separation of powers in terms of which the legislative authority of the State administration is vested in the Legislature, the executive authority in the Executive, and the judicial authority in the courts."</p> <p>  </p> <p>  </p> <p> I respectfully associate myself with this dictum.</p> <p> See also <em>Ruyobeza and Another v Minister of Home Affairs and Others</em> 2003(5) SA 51 (C) at 63G – J.</p> <p>  </p> <p> Whether there are exceptional circumstances justifying a Court to substitute its own decision for that of the administrative authority is "in essence … a question of fairness to <u>both</u> sides". (Emphasis is mine). <em>Livestock</em> <em>Meat</em> <em>Industries</em> <em>Control</em> <em>Board</em> v <em>Garda</em> 1961(1) <em>SA 342 (A) at 349G; Jewish Board of Deputies v Sutherland NO and others (supra)</em> at 390G; <em>Erf One Six Seven Orchards CC v Greater Johannesburg Metropolitan Council (Johannesburg Administration) and Another</em> 1999(1) SA 104 (SCA) at 109C – E.</p> <p>  </p> <p> Hlophe J (as he then was) lucidly and succinctly stated the principles pertaining to the substitution of the functionary’s decision in <em>University of Western Cape and Others v Member of Executive Committee for Health and Social Services and Others</em> 1998 (3) SA 124 (C) at 131D – G as follows and I quote with respectful approval:</p> <p>  </p> <p> “Where the end result is in any event a foregone conclusion and it would merely be a waste of time to order the tribunal or functionary to reconsider the matter, the Courts have not hesitated to substitute their own decision for that of the functionary. The Courts have also not hesitated to substitute their own decision for that of a functionary where further delay would cause unjustifiable prejudice to the applicant. Our Courts have further recognised that they will substitute a decision of a functionary where the functionary or tribunal has exhibited bias or incompetence to such a degree that it would be unfair to require the applicant to submit to the same jurisdiction again. It would also seem that our Courts are willing to interfere, thereby substituting their own decision for that of a functionary, where the Court is in as good a position to make the decision itself. Of course the mere fact that a Court considers itself as qualified to take the decision as the administrator does not <em>per se</em> justify usurping the administrator's powers or functions. In some cases, however, fairness to the applicant may demand that the Court should take such a view."</p> <p>  </p> <p> (Reference to authorities omitted.)</p> <p>  </p> <p>  </p> <p> In my respectful view the circumstances of this case, viewed objectively, are such that none of the above grounds justifies the substitution by the Court of its own decision for that of the functionary. A measure of judicial deference is therefore called for in this case, which as contentions advanced by the parties tend to show, involves the typically complex task of balancing competing interests. Judicial deference in the context of this case should be understood to mean:</p> <p>  </p> <p> "… a judicial willingness to appreciate the legitimate and constitutionally-ordained province of administrative agencies; to admit the expertise of those agencies in policy-laden or polycentric issues; and to be sensitive in general to the interests legitimately pursued by administrative bodies and the practical and financial constraints under which they operate. This type of deference is perfectly consistent with a concern for individual rights …. It ought to be shaped not by an unwillingness to scrutinize administrative action, but by a careful weighing up of the need for - and the consequences of - judicial intervention. Above all, it ought to be shaped by a conscious determination not to usurp the functions of administrative agencies; not to cross over from review to appeal."</p> <p>  </p> <p>  </p> <p> A Cockrell ‘”Can You Paradigm?”- Another Perspective on the Public Law/Private Law Divide’ 1993 <em>Acta</em> <em>Juridica</em> 227 (Quoted as in <em>Logbro</em> <em>Properties</em> <em>CC</em> <em>v</em> <em>Bedderson</em> <em>NO</em> <em>and</em> <em>Others</em> <em>2003</em> <em>(2)</em> <em>SA</em> <em>460 (SCA)</em>)</p> <p>  </p> <p>  </p> <p> Besides, as it was stated by the South African Supreme Court of Appeal in <em>Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd</em> 2003(6) SA 407 (SCA) at 432 para [53]:</p> <p>  </p> <p> "Judicial deference is particularly appropriate where the subject-matter of an administrative action is very technical or of a kind in which a Court has no particular proficiency."</p> <p>  </p> <p>  </p> <p> In his answering affidavit, Mr. Beytell averred that a consideration of the application for the importation of certain species postulated essentially a weighing up process involving, inter alia, an equally weighty consideration of relevant conservation and environmental principles, particularly the constitutionally recognised principle of the maintenance of ecosystems and sensitive ecological processes as well as the biological diversity of Namibia. (See Article 95(l) of the Namibian Constitution under the heading ‘Principles of State Policy’.)</p> <p>  </p> <p> Mr. Beytell furthermore referred to the Convention on Biological Diversity, an important international instrument, which emerged from the landmark 1992 United Nations “Earth Summit” in Rio de Janeiro, to which Namibia is a signatory and which also forms part of the law of Namibia by virtue of Article 144 of the Namibian Constitution. He set out in greater detail the approach he had adopted in the purported consideration of the appellant’s application and expressed certain views regarding the approach, which views Mr. Beytell asserted, were supported by environmental scientists that he mentioned by name.</p> <p>  </p> <p> Mr. Beytell’s views may be debatable, so I referred to them merely to illustrate the point I am making, namely that it seems to me that the subject-matter of the administrative decision in this case is relatively technical and therefore the consideration of the application for a permit is best left to the functionary with the power and proficiency to deal with the applications of this nature. The Court seems to me to be ill-equipped to make the decision of this nature. The matter in my view should be referred to the respondent for consideration in the light of this judgement and the judgements of my Brothers O’Linn, AJA, and Chomba, AJA. The respondent will have at his or her disposal the knowledge and skills of the experts referred to in Mr. Beytell’s affidavit. The appellant too submitted affidavits of experts who engaged Mr. Beytell and his experts in a spirited debate regarding the question whether or not the importation of Mountain Reedbuck would have had deleterious effects on the ecosystems of Namibia and who generally took issue with their views on biological diversity. I venture to think that some of these experts will offer their own perspectives on matters within the field of their expertise that may fall to be decided during the consideration of the application, thereby assisting the respondent to make a fair, reasonable and informed decision.</p> <p>  </p> <p> With greatest respect to my learned Brother who holds the contrary view, I would like to adopt the following dictum from the decision of the South African Supreme Court of Appeal in <em>Minister of Environmental Affairs &amp; Tourism v Phambili Fisheries (Pty) Ltd (supra)</em> at 431G Para [50] where it was stated:</p> <p>  </p> <p> "Judicial deference does not imply judicial timidity or an unreadiness to perform the judicial function. It simply manifests the recognition that the law itself places certain administrative action in the hands of the Executive, not the Judiciary."</p> <p>  </p> <p>  </p> <p> What is required of the respondent is essentially for the respondent to have regard to a broad band of considerations and the interests not only of the appellant but also of those that may be affected by the policy. In a nutshell, the respondent is enjoined by the Constitution and the law to act fairly and reasonably.</p> <p>  </p> <p> In the result, I concur with paragraphs 1, 2 and 4 of the order proposed by my Brother O'Linn, AJA. In respect of paragraph 3 of his order, I would make the following order instead:</p> <p>  </p> <p> 3. The matter is referred to the Respondent, the Minister of Environment and Tourism, to consider and decide after complying with the principles of natural justice including <em>the audi alteram partem</em> rule.</p> <p>  </p> <p>  </p> <p>  </p> <p> ________________________</p> <p> SHIVUTE, CJ.</p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <p>  </p> <div> <p> <a class="sdfootnotesym" href="#sdfootnote1anc" name="sdfootnote1sym" id="sdfootnote1sym">1</a> <em>ELGIN Fireclays Ltd v Wehls</em>, 1947 (4) SA 744 AD at 749-750.</p> <p> <em>Minister Estates (Pty) Ltd v Killarney Hills Pty Ltd, </em>1979 (1) SA 621 (AD) at 624 B-H</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote2anc" name="sdfootnote2sym" id="sdfootnote2sym">2</a> <em>Dresselhaus Transport v Government of the Republic of Namibia </em>SA 20/2003, NmS</p> <p> delivered 11.5.2005 p44.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote3anc" name="sdfootnote3sym" id="sdfootnote3sym">3</a> <em>Chairperson of the Immigration Selection v Frank &amp; Another</em>, 2001 NR 1075 SC</p> <p> at 109E – 110B; 116F – 121G; 170F – 176I</p> <p> <em>Government of the Republic of Namibia v Sikunda</em>, 2002 NR 2003 SC at</p> <p> 226G – 229 F. <u>See also</u> High Court decision; 2001 NR 181</p> <p> <em>Mostert v Minister of Justice</em>, 2003 NR 11 SC at 22J – 29 D.</p> <p> <em>Cronje v Municipal Council of Mariental</em>, 2004(4) NLLP 129 at 175 – 182</p> <p> <em>Du Preez &amp; Another v Truth and Reconciliation Committee</em>, 1997(3) SA 204 AD</p> <p> at 23 I – 234I and 233F – 234.</p> <p> <em>President of RSA v SA Rugby Football Union and Others</em>, 2000(1) SA 1(CC) at</p> <p> 93I – 99D.</p> <p> <em>Bel Porto School Governing Body &amp; Others v Premier Western Cape &amp; Another</em>, 2002(3) SA</p> <p> 265CC at 291C – 295H, 300C – 316E.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote4anc" name="sdfootnote4sym" id="sdfootnote4sym">4</a> See <em>Bel Porto School Governing Body and Others v Premier Western Cape and Another</em> 2002(3) SA 265 (CC) at 332-333, paragraphs 209-212.</p> <p> For the relationship between the doctrine of legitimate expectation and Article 18, see also:</p> <p> <em>The Chairperson of the Immigration Selection Board v Frank</em>, Footnote 3 <em>supra</em>.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote5anc" name="sdfootnote5sym" id="sdfootnote5sym">5</a> <em>Kasiyamhuru v Minister of Home Affairs &amp; Others, 1999 (1) SA 643 (W) at 651 D-E.</em></p> <p> <em>Attorney-General, OFS v Cyril Anderson Investments (Pty) Ltd 1965(4) SA 628(A) at 639.</em></p> <p> <em>Shidiack v Union Government, 1912 AD 642 at 648</em></p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote6anc" name="sdfootnote6sym" id="sdfootnote6sym">6</a> Baxter, <em>Administrative Law</em>, at 434/435</p> <p> <em>Martin v Overberg Regional Services Counsel</em> 1991(2) SA 651 at 656 G-H</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote7anc" name="sdfootnote7sym" id="sdfootnote7sym">7</a> <em>Opperman v Uitvoerende Komitee van die Verteenwoordigende Owerheid van die Blankes</em></p> <p> <em>en Andere</em> 1991 (1) SA 372 (SWA) at 380 D-E.</p> <p> <em>Shidiack v Union Government (Minister of Interior)</em> 1912 at 642.</p> <p> <em>Wasmith v Jacobs,</em> 1987(3) SA 629 (SWA)</p> <p> <em>Yannakom v Apollo Club</em>, 1974 (1) SA 614 (AD) at 623 F-H.</p> <p> <em>Baxter, Administrative Law </em>at 433-439</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote8anc" name="sdfootnote8sym" id="sdfootnote8sym">8</a> See the decisions quoted by my brother Shivute, CJ in regard to the discretion to be exercised by the Court.</p> <p> See in addition: Erf 167, <em>Orchards cc v Greater Johannesburg Metropolitan Council &amp; An</em> 1999(1) SA 92 (SCA) at 109 C-G and the decision therein referred to.</p> <p> <em>Airoad Express (Pty) Ltd., v Chairman Local Road Transportation Board, Durban and Others</em>, 1986(2) SA 663 AD at 680 E-F in regard to bias, gross incompetence and/or where the outcome appears to be foregone.</p> <p> <em>The Namibian Health Clinics cc v Minister of Health and Social Services</em>, unreported judgment of the High Court of Namibia dated 10 September 2002.</p> </div> <div> <p> <a class="sdfootnotesym" href="#sdfootnote9anc" name="sdfootnote9sym" id="sdfootnote9sym">9</a> 2003(6) 407 (SCA) at 432 par 53</p> </div></span></div></div> </div> </div> Mon, 05 Oct 2020 14:47:34 +0000 Anonymous 9045 at http://namiblii.org Minister of Mines and Energy and Others v Black Range Mining (Pty) Ltd (SA 18 of 2009) [2010] NASC 7 (15 July 2010); http://namiblii.org/na/judgment/supreme-court/2010/7 <span class="field field--name-title field--type-string field--label-hidden">Minister of Mines and Energy and Others v Black Range Mining (Pty) Ltd (SA 18 of 2009) [2010] NASC 7 (15 July 2010);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/786" hreflang="und">EL</a></div> <div class="field__item"><a href="/taxonomy/term/781" hreflang="und">Environmental damages</a></div> <div class="field__item"><a href="/taxonomy/term/595" hreflang="und">Energy</a></div> <div class="field__item"><a href="/taxonomy/term/476" hreflang="und">Natural Justice</a></div> <div class="field__item"><a href="/taxonomy/term/279" hreflang="und">Judicial Review</a></div> <div class="field__item"><a href="/taxonomy/term/335" hreflang="und">Procedural Fairness</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 10/05/2020 - 14:46</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>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. </p> <p>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. </p> <p>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.</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-rtf file--general"> <a href="https://media.namiblii.org/files/judgments/nasc/2010/7/2010-nasc-7.rtf" type="application/rtf; length=133820">2010-nasc-7.rtf</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.namiblii.org/files/judgments/nasc/2010/7/2010-nasc-7.pdf" type="application/pdf; length=172843">2010-nasc-7.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p> <strong>REPORTABLE </strong></p> <p> CASE NO.: SA 18/2009</p> <p> <strong>IN THE SUPREME COURT OF NAMIBIA</strong></p> <p>  </p> <p> In the matter between:</p> <p>  </p> <p> <strong>THE MINISTER OF MINES AND ENERGY FIRST APPELLANT</strong></p> <p>  </p> <p> <strong>ANCASH INVESTMENTS (PTY) LTD SECOND APPELLANT</strong></p> <p>  </p> <p>  </p> <p> and</p> <p>  </p> <p>  </p> <p> <strong>BLACK RANGE MINING (PTY) LTD RESPONDENT</strong></p> <p>  </p> <p>  </p> <p> Coram: STRYDOM, AJA, CHOMBA, AJA <em>et</em> DAMASEB, AJA.</p> <p>  </p> <p> Heard on: 24/03/2010</p> <p> Delivered on: 15/07/2010</p> <p>  </p> <p>  </p> <p> <strong>APPEAL JUDGMENT</strong></p> <p>  </p> <p>  </p> <p> <u><strong>STRYDOM, AJA:</strong></u> [1] This appeal concerns an application for review filed on 1 February 2007 by Erongo Nuclear Exploration (Pty) Ltd (Erongo) and respondent to review and set aside certain decisions of the first appellant. In terms of these decisions, taken on 25 August 2006 and 9 October 2006, the first appellant refused applications by Erongo to prospect and explore for nuclear fuels, such as uranium, on Exclusive Prospecting Licences (EPLs) in four areas known as EPL’s No’s 3547, 3548, 3549 and 3550. Simultaneously, application was also made to review and set aside the decision by the first appellant, taken on 23 October 2006, in terms of which he awarded 4 EPL’s to the second appellant authorizing it to explore for nuclear fuels over EPL’s which covered the same geographical area in respect of which Erongo’s application was unsuccessful and over which the respondent held EPLs to prospect for certain base metals and precious stones.</p> <p>  </p> <p> [2] It is necessary to set out the background history of the matter to show how respondent became involved in the matter and also because the challenges by appellants on respondent mainly concerned the latter’s ‘moral’ standing in these proceedings to bring the application for review. Both the first and second appellants urged the Court to find that this was an instance where the Court should not set aside the decision by the first appellant even though that decision might have been reviewable. This line of argument followed after it became clear that the first appellant, in granting the said EPL’s to the second appellant, neglected to comply with the provisions of sec. 69(2)(g) of the Minerals (Prospecting and Mining) Act, Act No. 33 of 1992, (the Act). I will later deal more fully with these provisions. The appellants further alleged that the respondent did not come to Court with clean hands and that it should not be allowed to benefit from its own wrongs. These submissions are based on the background history of the matter.</p> <p> [3] Mr. Corbett represented the first appellant whereas Mr Trengove, assisted by Mr. Barnard, appeared for the second appellant. Mr. Odendaal, assisted by Mr Tötemeyer, represented the respondent.</p> <p>  </p> <p> [4] An Australian mining company, Reefton Mining NL, has two wholly owned subsidiaries in Namibia, namely Reefton Exploration (Pty) Ltd and the respondent, Black Range Mining (Pty) Ltd. The respondent has been, since 2000, the holder of the four above- mentioned EPL’s issued to it in terms of the provisions of the Act and in respect of which the respondent was licenced to prospect for Base and Rare Metals, Industrial Minerals, Precious Metals and Precious Stones. The Licences did not permit the respondent to prospect for nuclear fuels such as uranium. (sec. 67(1)(a).)</p> <p>  </p> <p> [5] The EPL’s of the respondent covered, amongst others, an area known as Hakskeen. On 18 March 2005 Reefton publicly announced that the respondent had discovered a new uranium deposit at Hakskeen. As a result of this announcement, the shares of Reefton increased significantly. It also took the opportunity to effect a new public share issue on 16 June 2005 by which it raised UA$3 million.</p> <p>  </p> <p> [6] On 27 July the first appellant issued a public statement in which he accused Reefton that it, through its subsidiary, the respondent, was prospecting for uranium in breach of their EPL’s. In the meantime, and on 18 March 2005, the respondent applied for an amendment of its EPL’s to include prospecting for nuclear fuel. On 21 July 2005 the first appellant turned down the application. This in turn caused the price of Reefton’s shares to fall. All this further led to de-listing of Reefton from the London Stock Exchange’s Alternative Investment Market and led to an investigation by the Australian Securities and Investments Commission into the affairs of Reefton. Nothing untoward was found against Reefton as a result of the latter investigation.</p> <p>  </p> <p> [7] In the interim two applications were made by the respondent to amend its EPL’s to include nuclear fuel minerals. Both applications were refused on 20 July 2005 and in his public statement, of 27 July 2005, the first appellant stated that he had done so as a result of the unlawful prospecting for uranium by the respondent.</p> <p>  </p> <p> [8] On 5 October 2005 officials of Reefton held discussions with the first appellant and on 6 October 2005 the respondent submitted new applications for EPL’s in order to include the prospecting for nuclear fuels. This new application was likewise turned down by the first appellant on 8 November 2005.</p> <p>  </p> <p> [9] Thereafter some companies were set up which were wholly owned by Namibian citizens. These were Philco 24 (Pty) Ltd which later became Intaka Investments (Pty) Ltd and Philco 27 (Pty) Ltd which later became Erongo Nuclear Exploration (Pty) Ltd and which was a wholly-owned subsidiary of Intaka. A Mr. Haikali, who was also the deponent to an affidavit on behalf of Erongo in these proceedings, was the main shareholder.</p> <p>  </p> <p> [10] On 28 April 2008 Reefton Exploration (Pty) Ltd entered into a joint venture agreement with Intaka and Erongo, represented by Mr. Haikali, in terms whereof Erongo undertook to apply for nuclear fuel EPL’s. If the applications were successful, Reefton undertook to make an initial contribution of N$1, 5m to Erongo to fund its costs of exploration. As a <em>quid pro quo</em> Reefton would get 60% of the shares in Intaka. Thereafter the Namibian shareholders would have to make an election, either to carry 40% of the ongoing exploration costs, or to transfer a further 15% of the shares in Intaka to Reefton in which case it would make a further contribution of N$1 m towards Erongo’s working capital. In the applications for these EPL’s mention was made of the role of Reefton and the joint venture agreement with them.</p> <p>  </p> <p> [11] In May 2006 Erongo duly applied for the four EPL’s to prospect for nuclear fuel minerals. The applications were scrutinized and considered by various bodies and persons put in place by the first appellant. In each instance there was a recommendation that the applications be granted. This was also the attitude of the Mining Commissioner. He, however, in a note, referred to the previous problems with Reefton. The applications were refused by the first appellant and as reason for the refusal he stated the joint venture agreement and Reefton’s previous actions in relation to nuclear fuels.</p> <p>  </p> <p> [12] Before the matter was heard in the High Court, Erongo withdrew from the proceedings which then also brought an end to their application to review the decision of the first appellant not to grant Erongo the EPL’s in regard to nuclear fuels. The respondent remained as the only applicant before the Court <em>a quo</em> and the only issue for determination was the review of the EPL’s granted by first appellant to second appellant which EPL’s were over the same geographical area as those applied for by Erongo and over which the respondent held EPL’s for minerals other than nuclear fuels.</p> <p>  </p> <p> [13] The issue which this Court must decide, apart from the appellants’ challenge to the ‘moral’ standing of the respondent, remains the reviewability of the grant of the EPL’s to the second appellant. For this reason it will also be necessary to look at the background and the process by which this grant was made.</p> <p>  </p> <p> [14] In the founding affidavit reliance was placed, by the respondent, <em>inter alia,</em> on various grounds such as the non-compliance by the first appellant with the provisions of sec 69(2)(g) s. sec. (i) to (iv) which brought into play the <em>audi alteram partem </em>rule in instances where an EPL is granted over the same prospecting area of another holder of an EPL albeit for a different group of minerals. This failure, it was alleged, also resulted in the first appellant not properly applying his mind when he came to grant these EPL’s to the second appellant. Other grounds raised by the respondent were the alleged violation of its rights to fair and reasonable decision-making in terms of Art. 18 of the Constitution and its rights to freely carry on its trade or business in terms of Art. 21(1)(e) of the Constitution. Some of these grounds were not pursued before us and it is therefore not necessary to deal therewith.</p> <p>  </p> <p> [15] After the records in the review proceedings were filed by the first appellant, a number of irregularities and shortcomings were discovered in the applications made by the second appellant. These irregularities were pointed out in a supplementary affidavit and relied upon by the respondent in the proceedings before the High Court. This was done in terms of High Court Rule 53(4). These other issues relied upon by the respondent were non-compliance by the first appellant with sec. 68(c) which required the inclusion of certain particulars in the applications, such as a plan and map of the area. Non-compliance with secs. 68(h) and 69(2)(c)(i) which deal with certain particulars to be included in the applications, and concern the intended prospecting operations and expenditures. It was also alleged that there was not compliance with sec. 68(g) which required particulars of technical and financial resources. It was further complained that sec 6(1) of the Act, concerning secrecy in regard to the records of Erongo, was transgressed. I will deal with these, and other similar issues, more fully later in this judgment.</p> <p>  </p> <p> [16] It is inevitable that there would be some overlapping in the arguments presented by counsel for the first and second appellants and in such instances I shall deal with the arguments simultaneously. Although Mr. Trengove, as the senior counsel, argued first on behalf of the second appellant, I shall follow the sequence of the parties as they appear in the proceedings.</p> <p>  </p> <p> [17] Mr. Corbett firstly pointed out the pivotal role played by the first appellant in the administration of the Act and his obligation to ensure “that Namibia’s considerable mineral wealth is rationally utilized for the benefit of the development of our country” and submitted that the Court should practise a measure of deference towards the decisions taken by him. (See <em>Logbro Properties CC v Bederson NO and Others, </em>2003 (2) SA 460 (SCA).) This would also apply to matters of a highly technical nature which the first appellant was required to consider in order to achieve these goals. (See <em>Ekurhuleni Metropolitan Municipality v Dada NO, </em>2009 (4) SA 463 (SCA).)</p> <p>  </p> <p> [18] Counsel relied on the following excerpt from the <em>Logbro Properties </em>case, <em>supra</em>, p471, par. 21, where Cameron, JA, stated the following:</p> <p> “It is just in such circumstances that a measure of judicial deference is appropriate to the complexity of the task that confronted the committee. Deference in these circumstances has been recommended as ‘… judicial willingness to appreciate the legitimate and constitutionally ordained province of administrative agencies. ….This type of deference is perfectly consistent with a concern for individual rights and a refusal to tolerate corruption and maladministration. It ought to be shaped, not by unwillingness to scrutinize administration action, but by a careful weighing up of the need for – and the consequences of - judicial intervention. Above all, it ought to be shaped by a conscious determination not to usurp the functions of administrative agencies, not to cross over from review to appeal.’”</p> <p> (This is a citation from an article by Cora Hoexter ‘The Future of Judicial Review in South African Administrative Law’ (2000) 117 <em>SALJ</em> 484 at 501-502, citing A Cockrell “Can you Paradigm?” 1993 <em>Acta Juridica</em> 227.)</p> <p>  </p> <p> [19] Although I have no quarrel with the principle set out above, the <em>Logbro Properties</em> case does not support first appellant’s contentions. The circumstances to which Cameron, JA, referred to, at the beginning of the citation, differ materially from the present case. In that matter the High Court ordered a tender committee to reconsider a tender to buy property which the appellant had submitted two years earlier. The lapse of time was due to previous successful proceedings brought by the appellant when he was not awarded the tender in the first instance. When the committee reconsidered the matter two years later it decided not to accept the tender of the appellant, which was now the highest, but decided that, because of the increase of property values in the Richards Bay property market since the tenders were obtained, to call for fresh tenders. The appellant went back to Court but was this time unsuccessful. Hence the appeal. The Court of Appeal stated that the appellant was entitled to a lawful and procedurally fair process and an outcome which was justifiable in relation to the reasons given for it. Even if the tender process entitled the committee to withdraw the Richards Bay property they could do so only with due regard to the principles of administrative justice. The Court found that but for the mistake committed in 1995 the appellant would in all likelihood have received the benefit of a property acquisition judged against the then market values. The question was then to what extent the right to administrative justice entailed exemption from prejudicial effects of a functionary’s mistakes. As the mistake made was neither based on bad faith or administrative perversity the mistake committed was an innocent one. The committee, when they considered the situation in 1997, had to do so by not only giving fair consideration to the appellant’s tender but had also to consider its broader responsibilities which included the public benefit to be derived from obtaining a higher price by re-advertising the property. In these circumstances the Court stated that a measure of judicial deference was appropriate and refused to set aside the decision of the committee for this reason.</p> <p> [20] Notwithstanding its finding, set out above, the Court, in the <em>Logbro Properties </em>case, set aside the decision to re-advertise for tenders because the Court was of the opinion that procedural fairness demanded that the committee, in considering to re-advertise, should have afforded those tenderers, whose tenders complied, an opportunity to make representations before they took their decision to re-advertise. In the present case it would not only have been fair to afford the respondent an opportunity to make representations to the first appellant, considering that second appellant’s EPL’s covered the same area as those of the respondent, the first appellant was by Act of Parliament required to do so and he failed to comply.</p> <p>  </p> <p> [21] With reference to the case of <em>Oudekraal Estates v City of Cape Town,</em> 2004 (6) SA 222 (SCA) both counsel submitted that the Court had a discretion in judicial review proceedings either to uphold an invalid administrative act or to set it aside. Counsel submitted, albeit for different reasons, that this was an instance where the Court should uphold the decision by the first appellant to grant nuclear fuel EPL’s to the second appellant, even if it was found to be invalid. In pa. [36] of the <em>Oudekraal </em>case the following was stated by the Court, namely:</p> <p> “(A) court that is asked to set aside an invalid administrative act in proceedings for judicial review has a discretion whether to grant or to withhold the remedy. It is that discretion that accords to judicial review its essential and pivotal role in administrative law, for it constitutes the indispensable moderating tool for avoiding or minimising injustice when legality and certainty collide.”</p> <p>  </p> <p> [22] This finding is based on what is accepted in our law that even an invalid administrative act “…….(is) capable of producing legally valid consequences for so long as the unlawful act is not set aside.” (<em>Oudekraal </em> case, <em>supra,</em> pa. [26].) (See further <em>Standing Tender Committee v JFE Sapela Electronics,</em> 2008 (2) SA 638 (SCA); <em>Seale v Van Rooyen NO, </em>2008 (4) SA 43 (SCA); <em> City of Cape Town v Helderberg Park Development, </em>2008 (6) SA 12 (SCA) and <em>Chairperson, Eskom Holdings v New Reclamation Group, </em>2009 (4) SA 628 (SCA).)</p> <p>  </p> <p> [23] In deciding whether to uphold or set aside an invalid administrative act, the cases show that there are various factors which the Court must consider when exercising its discretion. In the <em>Sapela </em>case, <em>supra,</em> a tender was awarded to a firm Nolitha after the latter was allowed to change its tender some two months after the closing of tenders. The Court of first instance set aside the award of the tender to Nolitha, because of this irregularity, and on appeal it was found that the acceptance of the tender of Nolitha and the award of the contract to it, were correctly held to be reviewable. The Court, however, continued and stated that that was not the end of the matter but given the effluxion of time, and the extent of the work already performed by Nolitha by the time the relief was granted, the issue was whether the Court’s order, whereby Nolitha’s grant was set aside, was capable of practical implementation. The Court investigated the matter and found [pa. 27] that if the order of the Court <em>a quo</em> was implemented it was likely not only to be disruptive but to give rise to a host of problems, not only in relation to a new tender process, but also in relation to the work to be performed and it added that, apart from prejudice caused to the respondent, that there was a public interest element in the finality of administrative decisions. It stated that two further considerations should be added where a Court had to exercise its discretion whether to uphold or set aside an invalid administrative act, namely pragmatism and practicality. [pa. 28]. The Court upheld the invalid administrative act and allowed it to stand.</p> <p>  </p> <p> [24] An example of where the Court exercised its discretion against the upholding of an invalid administrative act was the case of <em>Eskom Holdings, supra, paras. [15] to [18].</em> In the present instance neither the first appellant nor the second appellant have set out any facts to show that the setting aside of the decision of the first appellant will cause prejudice to the second appellant as a result of the effluxion of time and/or that because of the work done by the second appellant in regard to the EPL’s a stage was reached which would render it impractical to reverse the situation. Consequently, there is no basis on which the Court can exercise its discretion in favour of upholding the decision by the first appellant should it conclude that it was invalid.</p> <p>  </p> <p> [25] However, Mr. Corbett referred the Court to an affidavit made by one Esme Trollip, the approved accredited agent of the respondent, from which it was clear that the respondent, through some misunderstanding, neglected to apply timeously for the renewal of its EPL’s. Such application had to be filed 90 days before the expiry of any licence of an EPL. (Sec. 72(2)(a).) The D-day for such applications was 20 March 2009. The above section of the Act empowers the first respondent to condone any late application for renewal of a licence provided that the application for condonation is submitted before expiry of the licence. In this instance that date was 20 June 2009. In a supplementary affidavit, handed in on the date of hearing of the appeal, Ms. Trollip stated that the respondent’s application was submitted on 11 June 2009. At the time of the hearing of this matter the application was still under consideration by the first respondent.</p> <p>  </p> <p> [26] As the first affidavit by Ms. Trollip only indicated that application for condonation would still be made, Mr. Corbett, in his heads of argument, submitted that there was no certainty that an application would in fact be forthcoming. This objection has now been taken care of in the supplementary affidavit by Ms. Trollip which showed that the necessary was done by the respondent and was done in time.</p> <p>  </p> <p> [27] Mr. Corbett also submitted that it was speculation for Ms. Trollip to state in her affidavit that good cause was shown in the application. Counsel submitted that the misunderstanding and miscommunication referred to, did not constitute good cause and that the affidavit by Mr. Koep, the legal practitioner for the respondent, that in his experience the first appellant usually condoned late applications, was of no evidentiary value. Counsel consequently submitted that the relief sought was academic and even if the Court should find that the Minister’s decision constituted an invalid administrative act it should be permitted to stand for reasons of practicality and pragmatism and also based on the principle of deference practised by the Courts.</p> <p>  </p> <p> [28] It is not the function of this Court to decide whether the first appellant will grant condonation to the respondent or not. However, it seems that in the past the first appellant had no problem to renew the EPL’s of the respondent. What is certain in this regard is that in terms of the provisions of sec. 71(3)(a) the licences of the respondent are still valid and will remain so until and unless the applications are refused by the first appellant. In my opinion it could therefore not be said that the issue of the administrative act has become academic and I agree with the conclusion of the Court <em>a quo </em>on this point.</p> <p>  </p> <p> [29] Both Mr. Trengove and Mr. Corbett submitted that the application for review should be dismissed because it was not shown that the respondent would suffer any prejudice as a result of the decision of the first appellant to grant EPL’s to the second appellant. Whether the issue of prejudice arises, depends of course on whether the administrative act by the first appellant, in granting the EPL’s to second appellant, was invalid. Both appellants accepted that there was non-compliance with sec. 69(2)(g)(i) and (ii) and to a certain extent they seem to also accept that the grant was invalid. Hence in argument they concentrated on defences to the application by the respondent rather than stress the merits of the application of the second appellant.</p> <p>  </p> <p> [30] It is therefore necessary to look at the provisions of sec. 69(2)(g) of the Act. The full text of the sub-section reads as follows:</p> <p> “Notwithstanding the provisions of subsection (i), the Minister shall not grant an application by any person for an exclusive prospecting licence -</p> <p> (g) in respect of any prospecting area or retention areas in relation to a mineral or group of minerals other than the mineral or group of minerals to which the exclusive prospecting licence or mineral deposit retention licence issued in respect of such areas relates, respectively, unless –</p> <ol><li> <p> such person has given notice in writing, not later than on the date on which such application is made, to the holder of the exclusive prospecting licence or mineral deposit retention licence to which such prospecting area or retention area, as the case may be, relates of his or her application or intended application, as the case may be, for such exclusive prospecting licence and has provided the Minister of proof in writing of having done so;</p> </li> <li> <p> the Minister has afforded the holder referred to in subparagraph (i) a reasonable opportunity to make representations in relation to such application;</p> </li> <li> <p> the Minister deems it, with due regard to representations made in terms of subparagraph (ii) if any, desirable in the interests of the development of the mineral resources of Namibia, to grant such licence; and</p> </li> <li> <p> the Minister is on reasonable grounds satisfied that prospecting operations carried on by virtue of such licence will not detrimentally affect the rights of any holder of an exclusive prospecting licence or a mineral deposit retention licence, as the case may be, in respect of any area.”</p> </li> </ol><p>  </p> <p> [31] Both counsel submitted that ordinarily a Court would not set aside an administrative decision on review unless it was shown that the applicant suffered prejudice. (See <em>Rajah &amp; Rajah v Ventersdorp Municipality, </em>1961 (4) SA 402 (AD) 407G – 408A; <em>Jockey Club of South Africa and Others V Feldman, </em>1942 AD 340 at 359; <em>South African Post Office v Chairperson, Western Cape Tender Board, </em>2001 (2) SA 675C at par. 22 and <em>du Plessis v Prokureursorde, Transvaal, </em>2002 (4) SA 344 (TPD) at 350C to E.)</p> <p>  </p> <p> [32] Mr. Trengove pointed out that sec. 69(g) was designed to protect the existing EPL holder against the risk that the prospecting operations of the new licensee might detrimentally affect his rights. He further argued that the respondent did not and could not contend that there was any such risk in this instance as it consented to Erongo’s applications for nuclear fuel EPL’s. It therefore could not suggest that second appellant’s prospecting for nuclear fuel minerals would in any way adversely affect its rights. Counsel further referred to the founding affidavit of Erongo where it was stated that the grant of EPL’s to the second appellant detrimentally affected Erongo’s rights in that this grant effectively precluded the grant of any EPL to Erongo for nuclear fuel minerals over that area. Counsel submitted that that was the high water mark alleged in the proceedings as far as prejudice went and, as Erongo had withdrawn, that was also no longer an issue.</p> <p>  </p> <p> [33] Mr. Corbett submitted that the relief sought in this matter was academic. He pointed out that the EPL’s of the respondent and that of the first appellant co-existed since 23 October 2006 and that according to the Mining Commissioner no objections of whatever nature had been lodged in the quarterly reports filed by the respondent or in any correspondence with the Ministry. Counsel referred to the statement by Haikali in which he remarked that as far as he was aware, the second appellant had not yet commenced any prospecting activities in terms of the 4 EPL’s granted to it and that Erongo and the respondent reserved their rights if the second appellant would in any way infringe those rights. So far no complaints by the respondent have been received. Counsel referred the Court to the case of <em>Beukes v Director-General, Department of Manpower and Others,</em>1993 (1) SA 19 (CPD) at 28J – 29C and submitted that the principle that the Court would not consider academic issues applied equally to matters where it was alleged that a decision maker had failed to comply with the <em>audi alteram partem</em> rule.</p> <p>  </p> <p> [34] Mr. Odendaal first of all referred to all the instances where the application of the second appellant failed to comply with the provisions of the Act and submitted that an irregularity in proceedings calculated to prejudice a party <em>prima facie</em> entitled such party to have the proceedings set aside (See the <em>Jockey Club </em>case, <em>supra,</em> at p 355 and <em>Greatex Knitwear (Pty) Ltd v Viljoen and Others, </em>1960 (3) SA 338 (TPD) 343 C –E). Counsel further submitted that the onus was strictly on the party who defended an application for review to adduce evidence and prove that the failure to comply with the requirements of legality did not cause prejudice to the other party. (See, <em>inter alia,</em> <em>Cohen v South African Pharmacy Council, </em>1993 (1) SA 297 (CPD) at 303 H – J; <em>Grove Primary School v Minister of Education and Others, </em>1997 (4) SA 982 (CPD) at 997 H – I and <em>Financial Services Board and Another v De wet N.O. and Others, </em>2002 (3) SA 525 (CPD) at 616F). It was therefore incumbent on the appellants to produce evidence showing that no prejudice was suffered by the respondent, and that as they had not done so, the issue of prejudice failed at the first hurdle. (See <em>inter alia, SA Geneeskundige en Tandheelkundige Raad v Kruger, </em>1972 (3) SA 318(AD) at 326 F – G and <em>Rajah and Rajah v Ventersdorp Municipality, supra, </em>at 407G – 408A).</p> <p>  </p> <p> [35] A reading of sec. 69(2)(g) shows that the provisions are couched in peremptory language….“<em>(the) Minister shall not grant an application by any person for an exclusive prospecting licence……….unless.” </em>The section first of all prohibits the granting of EPL’s for the same minerals, or group of minerals, over an area where there are existing EPL’s. It furthermore prohibits the granting of such EPL’s unless notice of the application was given to the holder of the existing EPL’s in writing by the new applicant and proof thereof was provided to the Minister. The Minister was then required to afford the existing holder a reasonable opportunity to make representations to him in relation to the application. The Minister in turn must consider the representations for two reasons. Firstly to decide whether, with reference to the representations, it is desirable in the interest of the development of the mineral resources of Namibia, to grant such licence, and secondly, he must be satisfied that the prospecting operations carried on by virtue of such new licence will not detrimentally affect the rights of any existing holder of the EPL’s. There is a clear correlation between the two duties of the Minister because interference with the rights of an existing holder may affect in many ways the development of a particular mineral resource by the existing holder of the EPL’s and may therefore not be desirable in the interests of Namibia. By not affording respondent an opportunity to make representations, the first appellant deprived himself from fulfilling the statutory duties which were entrusted to him by the Act. This is also relevant to Mr. Corbett’s argument that the Court must show deference to the difficult technical decisions which the first appellant is required to make in order to develop mineral resources to the benefit of the Country. By not calling for representations from the respondent, the first appellant could not properly fulfil this function and the issue does therefore not arise in this instance.</p> <p>  </p> <p> [36] Mr Trengove’s argument that by consenting to Erongo’s applicdations for EPL’s over the existing EPL’s held by it, the respondent could not now suggest interference with its rights where second respondent was concerned, loses sight of the fact that in the first instance, in terms of its agreement with Erongo, respondent would have been in control of the operations. That is not the case where the EPL’s are in the hands of second appellant over whom he has no control. I also agree with Mr. Odendaal that Erongo’s claim that it was prejudiced by the granting of the EPL’s to second appellant, in the sense that it was now precluded from applying for those EPLs itself, applies only to Erongo and it does not reflect upon the respondent.</p> <p>  </p> <p> [37] Mr. Corbett’s submission that the respondent has never complained about interference by the second appellant with its rights, begs the question in the light of Haikali’s allegation that as far as he knew no prospecting had yet been done by second respondent. This statement, which is part of the founding affidavit, was clearly made before the second appellant’s applications were filed as part of the proceedings before the first appellant. Once it was clear that the applications were flawed in many respects, reliance was placed on these aspects and it was indicated in the supplementary affidavit to what extent representations could have been placed before the first appellant in regard thereto.</p> <p>  </p> <p> [38] For that reason counsel’s reliance placed on the <em>Beukes </em>case, <em>supra, </em>is not helpful. The facts of that case were exceptional and distinguishable from the present case. In that matter the applicant claimed certain protection which he was not entitled to by virtue of the provisions of an Act of Parliament, which excluded persons, such as the applicant, from claiming reliance on the Act. When this was raised in the affidavit of the respondent the applicant merely replied that he had no knowledge thereof but that in any event he did not accept the correctness of the allegations. The Court nevertheless found that applicant should have been afforded an opportunity to make representations. The futility of allowing the applicant to make representations in the light of the provisions of the Act and his own lack of knowledge, regarding his position, prompted the Court to find that even if he had been given an opportunity to make representations it was clear that there was nothing that the applicant could have added to change the situation and he therefore did not suffer any prejudice. That, as I will attempt to show later, is not the position in the present matter.</p> <p>  </p> <p> [39] At this stage it would be convenient to refer to the instances in which the applications of the second appellant fell short of the requirements of the Act. These shortcomings were not only concerned with a lack of information which was required by the Act but also contained misleading statements. These shortcomings were over and above the fact that there was no compliance with sec 69(2)(g). In the following respects the applications of the second appellant did not comply with the Act or did not comply fully therewith, namely:</p> <p> (a) Sec. 68(c) requires that an application for an EPL shall contain a detailed plan of the area to which the application relates with reference to the magisterial districts over which it applies and the names and number of each farm situated within the areas as well as reference to the extent of such area by reference to identifiable physical features. It was pointed out by Mr. Odendaal that no plan or map was submitted and in one instance the name and numbers of the farms concerned were not provided. I also agree with counsel that the first appellant’s contention that these were not requirements of the Act has no substance. The purpose of this requirements is to assist the first appellant and to demonstrate to what extent the granting of the EPL’s applied for may overlap and infringe upon the rights and activities of an existing EPL holder. This is one of the issues which the first appellant must consider before granting a licence.</p> <p> (b) Non-compliance with secs. 68(h) and 69(2)(c)(i). As pointed out by counsel these sections require details concerning the envisaged prospecting programme, the duration of prospecting activities and the expenditure to be incurred in respect thereof. This would be a further demonstration of what impact such activities may have on the existing EPL’s. The significance of this requirement is further underscored by sec. 72(3) which requires that the Minister shall not renew an EPL unless he is satisfied on reasonable grounds with the manner in which the programme of prospecting operations has been carried out or he is satisfied with the expenditure expended in respect of such operations. It follows from this that if there is not a detailed programme of operations and expenditure that the Minister, when it comes to the renewal of the EPL, will have no means against which he can determine rate of prospecting operations or compare the expenditure expended in respect of the operations. It is seemingly for this reason that sec. 69(2)(c)(i) requires that the Minister shall not grant an EPL unless he is satisfied on reasonable grounds with the proposed programme of prospecting operations or the proposed expenditure to be expended in respect thereof. Although both appellants deny non compliance with these sections a reading of the second appellant’s applications proved the inadequacy of the information supplied.</p> <p> (c) Non-compliance with sec. 68(g). This section concerns documentary proof, or such other proof as may be required by the Commissioner, of the technical and financial resources of, or available to the person carrying on the prospecting operations. The second appellant’s compliance with this requirement consists of a signed letter by one Von Palace in which he undertook to provide N$10m on behalf of a named company. There was no indication whether Von Palace was authorized by the company to make such offer or any indication of whether Von Palace or the company had the means to make good on its offer. In this regard it was admitted on behalf of the first appellant that Von Palace was unknown to the Mining Commissioner and the first appellant.</p> <p> (d) Further complaints by the respondent were the irregular copying of information of its application forms contained in the applications of the second appellant as well as the fact that first appellant relied on and approved second appellant’s EPL’s on the basis of a recommendation by the Mining Commissioner which in turn was based on an exploration programme set out by the second appellant which was completely different to the area for which the EPL were ultimately granted. The description was of an area falling totally outside the area applied for by the second appellant and in certain respects was more that a 100 kilometres away from it. The explanation for this by the first appellant was unacceptable.</p> <p>  </p> <p> [40] Where it has been proved that an irregularity has been committed which <em>prima facie </em>is calculated to prejudice the other party the onus to prove that that party has not suffered prejudice is on the party opposing the review, in this instance the appellants. (See <em>Jockey Club of South Africa and Others v Feldman, </em>1942 AD 340 at 359; <em>S.A. Geneeskundige en Tandheelkundige Raad v Kruger, </em>1972 (3) SA 318 (AD) at 326E-G; <em>Grove Primary School v Minister of Education and Others, </em>1997 (4) SA 982(CPD) at 997F-I and <em>Financial Services Board and Another v De Wet NO and Others, </em>2002 (3) SA 525 at E-G).</p> <p>  </p> <p> [41] In this instance it was conceded that the first appellant did not comply with its statutory duty in terms of sec. 69(2)(g) by inviting the respondent to make representations to him before he granted the EPL’s to the second appellant. Non-compliance with the <em>audi alteram partem </em>rule, where that was necessary, constituted an irregularity which is <em>prima facie </em>calculated to prejudice the party requesting review (i.e. the respondent). A reading of the cases shows that potential prejudice would suffice to set aside a decision on review and I agree with the Judge <em>a quo</em> that the respondent was prejudiced by not having had an opportunity to put representations before the first appellant. There was much which it could draw attention to, uninhibited by the rules of the law of evidence. All this was pointed out in the affidavits on behalf of the respondent. I therefore do not agree with counsel that there was no prejudice suffered by the respondent and that the application for review was academic. If the respondent was given an opportunity to place representations before the first appellant there is in my opinion little doubt that the outcome of second appellant’s application might have been different.</p> <p>  </p> <p> [42] Both appellants also raised the defence of “unclean hands” and submitted that the respondent’s application should be dismissed on these grounds. The background to this defence is the irresponsible and misleading public announcement made by Reefton concerning respondent’s “new discovery” of uranium at the farm Hakskeen and further action taken by the respondent and Reefton flowing from this announcement. Both counsel further submitted that the respondent targeted uranium from the very start notwithstanding the fact that it did not hold any rights to prospect for nuclear fuel minerals. Counsel submitted that once it discovered uranium, the respondent did not notify the mining inspector of its find, as required by the Act, and continued to concentrate its prospecting activities on that metal.</p> <p>  </p> <p> [43] Although there is no evidence that the respondent targeted uranium as such from the start of its activities I will accept for purposes of the judgment the arguments and the submissions of counsel for the appellants that there is evidence that once the discovery was made, the respondent did not inform the mining inspector immediately of its find and, that thenceforth, its activities were very much aimed at prospecting for uranium. I also agree with the criticism, made by counsel for the appellants, against the announcement made of the “new discovery” and which favourably influenced the shareholding of Reeftons.</p> <p>  </p> <p> [44] Counsel on behalf of both appellants also criticized the way in which Erongo’s application was used by Reefton and/or respondent to get its hands on nuclear fuel minerals by using Erongo, as a fully owned Namibian company, to apply for EPL’s for nuclear fuel minerals whereas once the EPL’s were granted, the joint venture agreement would allow Reefton, through its subsidiary, Black Range, to acquire the majority shareholding in Erongo’s holding company. In this way Reefton would in effect become the holder of the EPL’s. At least the respondent and Erongo did not hide Reefton’s involvement with Erongo and, when called for, provided the first appellant with the joint venture agreement. The allegation that the agreement was purposely kept away from the first appellant is no more than speculation.</p> <p>  </p> <p> [45] Mr. Odendaal submitted that the Court should reject the reliance placed on the doctrine of “unclean hands”. Firstly counsel submitted that the doctrine found its application in the fraud, dishonesty or mala fides of a party approaching a court for the protection of his rights. There is no allegation on the affidavits of the appellants that the respondent was guilty of any of these requirements in regard to the rights which the respondent sought to enforce in these proceedings. Secondly, counsel submitted that, for the doctrine to apply, there should be a <em>nexus</em> between the alleged wrongful conduct and the basis for the relief sought. This <em>nexus, </em>counsel submitted, was absent from the present matter.</p> <p>  </p> <p> [46] All counsel were in agreement that the doctrine would apply in circumstances where there was some or other dishonesty on the part of the person who claimed protection for his rights. They were also in agreement that primarily the doctrine found its application in the field of unlawful competition where an applicant sought to interdict a competitor for unlawful conduct in circumstances where the applicant himself was trading dishonestly and nevertheless sought protection from the Court which would then allow him to continue his dishonest trading. (See in this regard <em>Tullen Industries v de Sousa Costa (Pty) Ltd &amp; Others,</em> 1976 (4) SA 218 (TPD) at 221 E – H and <em>Mqoqi v City of Cape Town &amp; Another, </em>2006 (4) SA 355 (CPD) at para [140].)</p> <p>  </p> <p> [47] The only issue now before the Court, as was also pointed out by counsel for the first appellant, is the grant of nuclear fuel EPL’s to the second appellant over the existing EPL’s of the respondent. It follows from that that the only right in respect of which the respondent could claim protection for is its rights to explore for base and rare metals, industrial minerals, precious metals and precious stones which it holds in terms of those EPL’s. That is also the only basis on which the respondent could have <em>locus standi </em>to continue with the application after the withdrawal of Erongo. The criticism levelled at the respondent by the appellants concerned the respondent’s dealings with the so-called new discovery of uranium and its attempts to acquire EPL’s for nuclear fuel minerals. That this has nothing to do with its existing EPL’s, and its rights flowing therefrom, was also recognized by the first appellant when it renewed the respondent’s application for the extension of these EPL’s in 2008 and was found, correctly by the Court <em>a quo</em>, to be of significance in coming to the conclusion that it should reject the appellants’ defence based on the doctrine of “unclean hands”. Mr. Odendaal’s submission that there is no allegation of impropriety as far as the respondent’s rights to prospect for the minerals and metals it holds in terms of its existing EPL’s is concerned, is correct.</p> <p> [48] In the matter of <em>Schuster v Guenther, </em>1933 SWA 19 at page 25, v.d. Heever, J (as he then was) stated the following:</p> <p> “A man who has entered into a contract which is prohibited by law, or which though in itself permissible, was entered into for mischievous purposes, or for purposes prejudicial or offensive to the public or to third parties, is not deprived of legal remedies in regard to his innocent transactions. “</p> <p>  </p> <p> [49] Likewise in the matter of <em>Tjospomie Boerdery (Pty) Ltd v Drakensberg Botteliers (</em>Pty<em>) Ltd, </em>1989 (4) SA 31 it was held that false allegations made by a litigant during the course of litigation which were unrelated to the basis upon which relief was sought by that party in the proceedings, were irrelevant. The learned Judge said the following on p60 C-D:</p> <p> “There is nothing to suggest that it may emerge that Drakensberg Botteliers and the JJ Vermooten Trust have not approached the Court with clean hands. The fact that it may be shown that Vermooten junior falsely denied having consented to the transfer of shares to Tjospomie Boerdery cannot alter that conclusion. The Snyman’s <em>coup</em> is the basis of the conclusion that a winding-up order is just and equitable. Any such false denial by Vermooten junior was quite irrelevant. It played no part in arriving at the relevant conclusion of justice and equity. Therefore it cannot be used to suggest that Drakensberg Botteliers and the JJ Vermooten Trust have not approached the Court with clean hands. It is simply irrelevant.”</p> <p>  </p> <p> [50] Although the remarks made by v.d. Heever, J, in the <em>Schuster</em> case, <em>supra,</em> was in connection with the enforcement of a contractual right <em>and</em> the present case deals with the protection of a right, the principle applied is the same, namely, that a Court does not deny a person access thereto in respect of the enforcement of his rights, or the protection thereof, if not contaminated by some or other act of dishonesty or other impediment as referred to by v.d. Heever, J. To do otherwise will run counter to the principle that the Court will not close its doors to a litigant except in exceptional circumstances such as was, <em>inter alia,</em> mentioned by the learned Judge. To do so in unjustifiable circumstances will also run counter to Art. 12 of our Constitution where that right is guaranteed.</p> <p>  </p> <p> [51] In the present matter the rights which the respondent seeks to protect are his rights in terms of his existing EPL’s. Those rights are not contaminated by any act of dishonesty, or fraud or mala fides and neither was it alleged that that was the case. The issue around the applications for nuclear fuel minerals, and the acts flowing therefrom, are simply irrelevant, and play no role in the litigation which the Court must adjudicate, namely the review of the granting of EPL’s to the second appellant.</p> <p>  </p> <p> [52] For the same reasons the defence based on the doctrine that a person should not be allowed to benefit from his own wrongs cannot be sustained. No wrong was committed by the respondent in regard to his existing EPL’s and the respondent has consequently not been benefiting from any wrong committed by it.</p> <p>  </p> <p> <strong>THE CROSS-APPEAL.</strong></p> <p> [53] The cross-appeal concerns an application to strike out various parts of the founding and replying affidavits of Haikali, the deponent on behalf of Erongo. The application was successful in its entirety and the Court <em>a quo</em> ordered the respondent to pay the costs of the application on a scale as between attorney and client.</p> <p> [54] The matter was somewhat complicated by reason of the fact that the first appellant’s answering affidavit was filed late which necessitated a further replying affidavit by Haikali. The respondent appealed against the entire order by the Court <em>a quo</em> and asked that it be dismissed with costs.</p> <p>  </p> <p> [55] Mr. Barnard, on behalf of the second appellant, submitted firstly that the striking out order by the Court <em>a quo </em>was interlocutory and was not appealable as of right. Counsel submitted that it was not a judgment or order as required by sec. 18(1) of the High Court Act, Act 16 of 1990. He referred to the matter of <em>Namibia Grape Growers and Exporters Association and Others v The Minister of Mines and Energy and Others, </em>2004 NR 194 (SC) where the Court stated as follows at p222F:</p> <p> “For the reasons set out above the third respondent’s cross-appeal against certain costs orders made by the Court <em>a quo </em>during the course of the proceedings is also not properly before the Court as no leave to appeal was sought in those instances. Counsel for the respondent conceded also that the matters could not be heard by this Court and they are likewise struck from the roll.”</p> <p>  </p> <p> [56] A reading of that case, as was also pointed out by Mr. Tötemeyer, showed that the Court was there dealing with appeals against costs orders only which were made during the proceedings where interim orders were granted or refused by the Court <em>a quo</em>. Such orders were not appealable as of right in terms of sec. 18(3) of Act 16 of 1990 and as no leave to appeal was obtained they were struck off the roll. In the present instance Mr. Tötemeyer submitted that the appeal does not only concern a cost order made by the Court <em>a quo</em> but it is an appeal against an order made by that Court in terms of which certain portions of allegations made by Erongo were struck out by the Court. In that regard this cross-appeal is different from what the Court was dealing with in the <em>Namibia Grape Growers </em>case, <em>supra.</em></p> <p>  </p> <p> [57] Generally, interlocutory orders are not appealable as of right as they lack the attributes required for a judgment or order which is appealable in terms of sec. 18(1) of Act 16 of 1990. (See <em>Zweni v Minister of Law and Order, </em>1993 (1) SA 523 (AD) at 533G-H and 536A-C which was applied with approval in the case of <em>Aussenkehr Farms (Pty) Ltd v Minister of Mines and Energy, </em>2005 NR 21 (SC) at 29 A-E). However, if the striking out order was final in effect, and although it may lack some of the attributes of a judgment or order, required for an appeal as of right, it may nevertheless have a definitive and final bearing on the rights of the parties, in which instance it would be appealable as of right. See in this regard <em>Moch v Nedtravel (Pty) Ltd t/a American express Travel Service, </em>1996 (3) SA 1 (AD), where the Appeal Court, dealing with a refusal by the Judge <em>a quo </em>to recuse himself,<em> </em>Hefer, JA, stated the following with reference to the general test for appealability as set out in the <em>Zweni </em>case:</p> <p>  </p> <p> “On the other hand, because it is not definitive of the rights about which the parties are contending in the main proceedings and does not dispose of any of the relief claimed in respect thereof, it does not conform to the norms in the cited passage from the judgment in <em>Zweni’s </em>case and thus seems to lack the requirements for a ‘judgment or order’. However, the passage in question does not purport to be exhaustive or to cast the relevant principles in stone. It does not deal with a situation where the decision, without actually defining the parties’ rights or disposing of any relief claimed in respect thereof, yet has a very definitive bearing on these matters.” (p10E-F).</p> <p>  </p> <p> [58] Similar views were expressed in the case relied on by Mr. Tötemeyer namely <em>Phillips v National Director of Public Prosecutions, </em>2003 (6) SA 447 (SCA) where Howie, P, stated as follows:</p> <p> “[20] Counsel for the respondent is right, in my view, in submitting that a restraint order is only of interim operation and that, like interim interdicts and attachment orders pending trial, it has no definitive or dispositive effect as envisaged in <em>Zweni. </em>Plainly, a restraint order decides nothing final as to the defendant’s guilt or benefit from crime, or as to the propriety of a confiscation order or its amount. The crucial question however, is whether a restraint order has final effect because it is unalterable by the Court that grants it.</p> <p> [21] …</p> <p> [22] Absent the requirements for variation or rescission laid down in s 26(10)(a) (and leaving aside the presently irrelevant case of an order obtained by fraud or in error) a restraint order is not capable of being changed. The defendant is stripped of the restrained assets and any control or use of them. Pending the conclusion of the trial or the confiscation proceedings he is remediless. That unalterable situation is, in my opinion, final in the sense required by the case law for appealability.”</p> <p>  </p> <p> [59] An application to strike out certain allegations in a pleading or affidavit can, under certain circumstances, have a final effect on a party’s case where the allegations to be struck out concern the cause of action, or evidence to support such cause, of a party’s case. On the other hand the fact that allegations have been struck out from a pleading or affidavit may have little or no effect on the issues to be decided by a Court.</p> <p>  </p> <p> [60] According to the case law the above distinction determines whether the striking out was final and definitive of the rights of the parties, and therefore appealable as of right, or whether it was interlocutory in which case leave to appeal was necessary. In the case of <em>Harper v Webster,</em> 1956 (2) SA 495 (FC) the following was stated on p. 504 by Clayden FJ, namely:</p> <p>  </p> <p> “….the decision on the application to strike out, based as it was not on the contention that the claim was unjustified in law but on the manner in which it was pleaded, was an interlocutory order.”</p> <p>  </p> <p> [61] The above excerpt was cited with approval by Miller, JA, in the matter of <em>South African Motor Industry Employers’ Association v South African Bank of Athens Ltd, </em>1980 (3) SA 91 (AD) at 98D-F where the learned Judge also applied the principle to exceptions. A further instance where the <em>Harper</em> case, <em>supra, </em>found application was<em> Charugo Development Co. (Pty) Ltd v Maree N.O.,</em> 1973 (3) SA 759 (AD) where Botha, JA, remarked as follows on p. 764A-C:</p> <p> “It is clear from the judgment of the learned Judge <em> a quo</em> that the order striking out annexure “B” and all the words after “Chiddy” in para. 3 of the declaration, was based not on any consideration that the plaintiff’s claim was bad in law, but on the manner in which it was pleaded in para. 3.</p> <p> ………The order to strike out being therefore, clearly based on the manner in which the claim was pleaded in para. 3, it was purely interlocutory and, therefore, not appealable save with the necessary leave.”</p> <p> <br />  </p> <p> [62] The case of <em>Caroluskraal Farms (Edms) Bpk and Others v Eerste Nasionale Bank van Suider-Afrika Bpk, </em>1994 (3) SA 407 (AA) dealt with motion proceedings.<em> </em>In the Court <em>a quo </em>the respondent, then as applicant, applied for the liquidation of the appellants. The respondents, now the appellants, availed themselves with certificates issued in terms of sec. 21(1) of Act 28 of 1966 whereby all actions to recover debts from the holder of the certificates were suspended. The parties further agreed to request the Court to adjudicate the point <em>in limine </em>separately. The Court of first instance found that such certificates were not a bar to the liquidation proceedings. The appellants thereupon launched an appeal against such finding and because of the nature of the proceedings the parties were requested to also deal with the issue of appealability. Hefer, JA, stated that although the decision by the Court <em>a quo</em> did not have the attributes required for a judgment or order, as far as the appellants were concerned, the judgment was final in effect and therefore appealable. The following was stated by the learned Judge at p416 C-E:</p> <p> “Wanneer dit dan – hetsy in ‘n aksie of in mosieverrigtinge – gaan om ‘n spesiale verweer wat afsonderlik verhoor is, kom dit my logies voor om te let op die effek van die uitspraak op die regshulp wat deur die <em>verweerder </em>of<em> respondent </em>aangevra is. In wese is die Verhoorhof in so ‘n geval gemoeid met ‘n versoek van die verweerder of die respondent om die eis van die hand te wys op grond van ‘n verweer wat niks te make het met die meriete van die saak nie. Dit is die regshulp wat op hierdie stadium ter sprake is.</p> <p> In die onderhawige geval was die Verhoorhof ook slegs gemoeid met ‘n versoek van die destydse respondent om die likwidasie-aansoeke van die hand te wys op grond van die sertifikate. Soos reeds aangedui, is daardie versoek uitdruklik en onherroeplik van die hand gewys. Wat vorm sowel as effek betref, is ‘n geskilpunt wat spesiaal deur die destydse respondent geopper is met ‘n versoek om die aansoeke op grond daarvan van die hand te wys, finaal uitgeskakel. Myns insiens is die bevel wat gemaak is inderdaad ‘n ‘bevel’ wat vatbaar is vir appel.”</p> <p> (When – either in an action or motion proceedings – it concerns a special defence which is adjudicated separately, it seems logical to me to consider the effect of the judgment on the relief claimed by the <em>defendant </em>or the <em>respondent. </em>In essence the Trial Court is in such an instance dealing with a request by the defendant or the respondent to dismiss the claim on the bases of a defence that has nothing to do with the merits of the case. That is the relief which at that stage is to be considered.</p> <p> In the present instance the Trial Court was only dealing with a request by the erstwhile respondent to dismiss the liquidation applications on the bases of the certificates. As pointed out earlier that request was expressly and irrevocably rejected. Regarding its form as well as its effect, an issue which was specially raised by the erstwhile respondent with the request to dismiss the applications on that bases, was finally ruled out. In my opinion the order that was made was indeed an ‘order’ which is appealable.) (my free translation)</p> <p> <br />  </p> <p> [63] Applying the above principles to the striking out application in this matter it is clear that it does not have the attributes, referred to in <em>Zweni’s </em>case, to be a judgment or order. It does not deal with the merits of the case and consequently is not definitive of the rights about which the parties are contending in the main application, nor does it dispose of any of the relief claimed in respect thereof. This poses the question whether it can nevertheless be said that the order has a final and definitive bearing on the rights of the parties. In my opinion not. It was firstly never intended to finally bring to an end the relief claimed by the respondent in the main application for review. Secondly the form and effect of the striking out order, in this instance, had no bearing on the relief claimed by the respondent in the main application. Notwithstanding the striking out order the respondent was successful in the Court <em>a quo </em>as well as in this Court. The application, based as it was on alleged hearsay matter, vexatious and scandalous matter and new evidence, concerned the way in which this evidence was ‘pleaded’ or presented and not on considerations that the application lacked grounds to sustain the relief claimed. I am therefore of the opinion that the application to strike out was interlocutory and that in terms of sec 18(3) of Act 16 of 1990 it was necessary for respondent to obtain leave to appeal from the Court<em> a quo</em>, or, if that was refused, to petition the Chief Justice for such leave. As no leave to appeal was obtained the cross-appeal is not properly before us and must be struck off the roll.</p> <p>  </p> <p> [64] For the reasons stated herein before I have come to the conclusion that the appeals of the first and second appellants must be dismissed and that the cross-appeal must be struck off the roll. In my opinion the issue concerning the striking out did not require the attention of two instructed counsel and I shall only allow the costs of one such counsel. It was further clear that the learned Judge <em>a quo </em>mistakenly referred to pa. 3.1 of the notice of motion instead of pa. 1.3 when he issued the order in this matter and this must be corrected.</p> <p>  </p> <p> [65] In the result the following orders are made:</p> <p>  </p> <p> <strong>A. THE APPEALS.</strong></p> <p> 1. The appeals of the first and second appellants are dismissed with costs, such costs to include the costs of one instructing and two instructed counsel.</p> <p> 2. Paragraph 1 of the order of the Court <em>a quo </em>is hereby amended by deleting the numbers 3.1 where they appear in the paragraph and to substitute therefore the numbers 1.3.</p> <p>  </p> <p> <strong>B. THE CROSS-APPEAL.</strong></p> <p> The cross-appeal is struck off the roll with costs such costs to include the costs of one instructing and one instructed counsel.</p> <p> <br />  </p> <p> _______________</p> <p> <strong>STRYDOM, AJA</strong></p> <p>  </p> <p> I agree,</p> <p> <br />  </p> <p> ______________</p> <p> <strong>CHOMBA, AJA</strong></p> <p> <br />  </p> <p> <br />  </p> <p> <br />  </p> <p> I agree,</p> <p> <br />  </p> <p> <br />  </p> <p> <br />  </p> <p> _______________</p> <p> <strong>DAMASEB, AJA</strong></p> <p> <br />  </p> <p> <br />  </p> <p> <br />  </p> <p> <br />  </p> <p> Counsel on behalf of the First Appellant: Mr. A. W. Corbett</p> <p> Instructed By: Government Attorneys</p> <p> <br />  </p> <p> Counsel on behalf of Second Appellant: Mr. W. Trengove, SC</p> <p> Assisted By: Mr. T. Barnard</p> <p> Instructed By: Diekmann Associates</p> <p> <br />  </p> <p> Counsel on behalf of the Respondent: Mr. F. H. Odendaal, SC</p> <p> Assisted By: Mr. R. Tötemeyer</p> <p> Instructed By: Koep &amp; Partners</p> <p> <br />  </p> </div> <div class="views-element-container"><div class="view view-eva view-download-conditional view-id-download_conditional view-display-id-entity_view_1 js-view-dom-id-3d432584b5b470342dfa11bc636fc4347976eaf2d2e6652ed1b0f12ce1780178"> <div><div class="views-field views-field-views-conditional-field"><span class="field-content"><p> <strong>REPORTABLE </strong></p> <p> CASE NO.: SA 18/2009</p> <p> <strong>IN THE SUPREME COURT OF NAMIBIA</strong></p> <p>  </p> <p> In the matter between:</p> <p>  </p> <p> <strong>THE MINISTER OF MINES AND ENERGY FIRST APPELLANT</strong></p> <p>  </p> <p> <strong>ANCASH INVESTMENTS (PTY) LTD SECOND APPELLANT</strong></p> <p>  </p> <p>  </p> <p> and</p> <p>  </p> <p>  </p> <p> <strong>BLACK RANGE MINING (PTY) LTD RESPONDENT</strong></p> <p>  </p> <p>  </p> <p> Coram: STRYDOM, AJA, CHOMBA, AJA <em>et</em> DAMASEB, AJA.</p> <p>  </p> <p> Heard on: 24/03/2010</p> <p> Delivered on: 15/07/2010</p> <p>  </p> <p>  </p> <p> <strong>APPEAL JUDGMENT</strong></p> <p>  </p> <p>  </p> <p> <u><strong>STRYDOM, AJA:</strong></u> [1] This appeal concerns an application for review filed on 1 February 2007 by Erongo Nuclear Exploration (Pty) Ltd (Erongo) and respondent to review and set aside certain decisions of the first appellant. In terms of these decisions, taken on 25 August 2006 and 9 October 2006, the first appellant refused applications by Erongo to prospect and explore for nuclear fuels, such as uranium, on Exclusive Prospecting Licences (EPLs) in four areas known as EPL’s No’s 3547, 3548, 3549 and 3550. Simultaneously, application was also made to review and set aside the decision by the first appellant, taken on 23 October 2006, in terms of which he awarded 4 EPL’s to the second appellant authorizing it to explore for nuclear fuels over EPL’s which covered the same geographical area in respect of which Erongo’s application was unsuccessful and over which the respondent held EPLs to prospect for certain base metals and precious stones.</p> <p>  </p> <p> [2] It is necessary to set out the background history of the matter to show how respondent became involved in the matter and also because the challenges by appellants on respondent mainly concerned the latter’s ‘moral’ standing in these proceedings to bring the application for review. Both the first and second appellants urged the Court to find that this was an instance where the Court should not set aside the decision by the first appellant even though that decision might have been reviewable. This line of argument followed after it became clear that the first appellant, in granting the said EPL’s to the second appellant, neglected to comply with the provisions of sec. 69(2)(g) of the Minerals (Prospecting and Mining) Act, Act No. 33 of 1992, (the Act). I will later deal more fully with these provisions. The appellants further alleged that the respondent did not come to Court with clean hands and that it should not be allowed to benefit from its own wrongs. These submissions are based on the background history of the matter.</p> <p> [3] Mr. Corbett represented the first appellant whereas Mr Trengove, assisted by Mr. Barnard, appeared for the second appellant. Mr. Odendaal, assisted by Mr Tötemeyer, represented the respondent.</p> <p>  </p> <p> [4] An Australian mining company, Reefton Mining NL, has two wholly owned subsidiaries in Namibia, namely Reefton Exploration (Pty) Ltd and the respondent, Black Range Mining (Pty) Ltd. The respondent has been, since 2000, the holder of the four above- mentioned EPL’s issued to it in terms of the provisions of the Act and in respect of which the respondent was licenced to prospect for Base and Rare Metals, Industrial Minerals, Precious Metals and Precious Stones. The Licences did not permit the respondent to prospect for nuclear fuels such as uranium. (sec. 67(1)(a).)</p> <p>  </p> <p> [5] The EPL’s of the respondent covered, amongst others, an area known as Hakskeen. On 18 March 2005 Reefton publicly announced that the respondent had discovered a new uranium deposit at Hakskeen. As a result of this announcement, the shares of Reefton increased significantly. It also took the opportunity to effect a new public share issue on 16 June 2005 by which it raised UA$3 million.</p> <p>  </p> <p> [6] On 27 July the first appellant issued a public statement in which he accused Reefton that it, through its subsidiary, the respondent, was prospecting for uranium in breach of their EPL’s. In the meantime, and on 18 March 2005, the respondent applied for an amendment of its EPL’s to include prospecting for nuclear fuel. On 21 July 2005 the first appellant turned down the application. This in turn caused the price of Reefton’s shares to fall. All this further led to de-listing of Reefton from the London Stock Exchange’s Alternative Investment Market and led to an investigation by the Australian Securities and Investments Commission into the affairs of Reefton. Nothing untoward was found against Reefton as a result of the latter investigation.</p> <p>  </p> <p> [7] In the interim two applications were made by the respondent to amend its EPL’s to include nuclear fuel minerals. Both applications were refused on 20 July 2005 and in his public statement, of 27 July 2005, the first appellant stated that he had done so as a result of the unlawful prospecting for uranium by the respondent.</p> <p>  </p> <p> [8] On 5 October 2005 officials of Reefton held discussions with the first appellant and on 6 October 2005 the respondent submitted new applications for EPL’s in order to include the prospecting for nuclear fuels. This new application was likewise turned down by the first appellant on 8 November 2005.</p> <p>  </p> <p> [9] Thereafter some companies were set up which were wholly owned by Namibian citizens. These were Philco 24 (Pty) Ltd which later became Intaka Investments (Pty) Ltd and Philco 27 (Pty) Ltd which later became Erongo Nuclear Exploration (Pty) Ltd and which was a wholly-owned subsidiary of Intaka. A Mr. Haikali, who was also the deponent to an affidavit on behalf of Erongo in these proceedings, was the main shareholder.</p> <p>  </p> <p> [10] On 28 April 2008 Reefton Exploration (Pty) Ltd entered into a joint venture agreement with Intaka and Erongo, represented by Mr. Haikali, in terms whereof Erongo undertook to apply for nuclear fuel EPL’s. If the applications were successful, Reefton undertook to make an initial contribution of N$1, 5m to Erongo to fund its costs of exploration. As a <em>quid pro quo</em> Reefton would get 60% of the shares in Intaka. Thereafter the Namibian shareholders would have to make an election, either to carry 40% of the ongoing exploration costs, or to transfer a further 15% of the shares in Intaka to Reefton in which case it would make a further contribution of N$1 m towards Erongo’s working capital. In the applications for these EPL’s mention was made of the role of Reefton and the joint venture agreement with them.</p> <p>  </p> <p> [11] In May 2006 Erongo duly applied for the four EPL’s to prospect for nuclear fuel minerals. The applications were scrutinized and considered by various bodies and persons put in place by the first appellant. In each instance there was a recommendation that the applications be granted. This was also the attitude of the Mining Commissioner. He, however, in a note, referred to the previous problems with Reefton. The applications were refused by the first appellant and as reason for the refusal he stated the joint venture agreement and Reefton’s previous actions in relation to nuclear fuels.</p> <p>  </p> <p> [12] Before the matter was heard in the High Court, Erongo withdrew from the proceedings which then also brought an end to their application to review the decision of the first appellant not to grant Erongo the EPL’s in regard to nuclear fuels. The respondent remained as the only applicant before the Court <em>a quo</em> and the only issue for determination was the review of the EPL’s granted by first appellant to second appellant which EPL’s were over the same geographical area as those applied for by Erongo and over which the respondent held EPL’s for minerals other than nuclear fuels.</p> <p>  </p> <p> [13] The issue which this Court must decide, apart from the appellants’ challenge to the ‘moral’ standing of the respondent, remains the reviewability of the grant of the EPL’s to the second appellant. For this reason it will also be necessary to look at the background and the process by which this grant was made.</p> <p>  </p> <p> [14] In the founding affidavit reliance was placed, by the respondent, <em>inter alia,</em> on various grounds such as the non-compliance by the first appellant with the provisions of sec 69(2)(g) s. sec. (i) to (iv) which brought into play the <em>audi alteram partem </em>rule in instances where an EPL is granted over the same prospecting area of another holder of an EPL albeit for a different group of minerals. This failure, it was alleged, also resulted in the first appellant not properly applying his mind when he came to grant these EPL’s to the second appellant. Other grounds raised by the respondent were the alleged violation of its rights to fair and reasonable decision-making in terms of Art. 18 of the Constitution and its rights to freely carry on its trade or business in terms of Art. 21(1)(e) of the Constitution. Some of these grounds were not pursued before us and it is therefore not necessary to deal therewith.</p> <p>  </p> <p> [15] After the records in the review proceedings were filed by the first appellant, a number of irregularities and shortcomings were discovered in the applications made by the second appellant. These irregularities were pointed out in a supplementary affidavit and relied upon by the respondent in the proceedings before the High Court. This was done in terms of High Court Rule 53(4). These other issues relied upon by the respondent were non-compliance by the first appellant with sec. 68(c) which required the inclusion of certain particulars in the applications, such as a plan and map of the area. Non-compliance with secs. 68(h) and 69(2)(c)(i) which deal with certain particulars to be included in the applications, and concern the intended prospecting operations and expenditures. It was also alleged that there was not compliance with sec. 68(g) which required particulars of technical and financial resources. It was further complained that sec 6(1) of the Act, concerning secrecy in regard to the records of Erongo, was transgressed. I will deal with these, and other similar issues, more fully later in this judgment.</p> <p>  </p> <p> [16] It is inevitable that there would be some overlapping in the arguments presented by counsel for the first and second appellants and in such instances I shall deal with the arguments simultaneously. Although Mr. Trengove, as the senior counsel, argued first on behalf of the second appellant, I shall follow the sequence of the parties as they appear in the proceedings.</p> <p>  </p> <p> [17] Mr. Corbett firstly pointed out the pivotal role played by the first appellant in the administration of the Act and his obligation to ensure “that Namibia’s considerable mineral wealth is rationally utilized for the benefit of the development of our country” and submitted that the Court should practise a measure of deference towards the decisions taken by him. (See <em>Logbro Properties CC v Bederson NO and Others, </em>2003 (2) SA 460 (SCA).) This would also apply to matters of a highly technical nature which the first appellant was required to consider in order to achieve these goals. (See <em>Ekurhuleni Metropolitan Municipality v Dada NO, </em>2009 (4) SA 463 (SCA).)</p> <p>  </p> <p> [18] Counsel relied on the following excerpt from the <em>Logbro Properties </em>case, <em>supra</em>, p471, par. 21, where Cameron, JA, stated the following:</p> <p> “It is just in such circumstances that a measure of judicial deference is appropriate to the complexity of the task that confronted the committee. Deference in these circumstances has been recommended as ‘… judicial willingness to appreciate the legitimate and constitutionally ordained province of administrative agencies. ….This type of deference is perfectly consistent with a concern for individual rights and a refusal to tolerate corruption and maladministration. It ought to be shaped, not by unwillingness to scrutinize administration action, but by a careful weighing up of the need for – and the consequences of - judicial intervention. Above all, it ought to be shaped by a conscious determination not to usurp the functions of administrative agencies, not to cross over from review to appeal.’”</p> <p> (This is a citation from an article by Cora Hoexter ‘The Future of Judicial Review in South African Administrative Law’ (2000) 117 <em>SALJ</em> 484 at 501-502, citing A Cockrell “Can you Paradigm?” 1993 <em>Acta Juridica</em> 227.)</p> <p>  </p> <p> [19] Although I have no quarrel with the principle set out above, the <em>Logbro Properties</em> case does not support first appellant’s contentions. The circumstances to which Cameron, JA, referred to, at the beginning of the citation, differ materially from the present case. In that matter the High Court ordered a tender committee to reconsider a tender to buy property which the appellant had submitted two years earlier. The lapse of time was due to previous successful proceedings brought by the appellant when he was not awarded the tender in the first instance. When the committee reconsidered the matter two years later it decided not to accept the tender of the appellant, which was now the highest, but decided that, because of the increase of property values in the Richards Bay property market since the tenders were obtained, to call for fresh tenders. The appellant went back to Court but was this time unsuccessful. Hence the appeal. The Court of Appeal stated that the appellant was entitled to a lawful and procedurally fair process and an outcome which was justifiable in relation to the reasons given for it. Even if the tender process entitled the committee to withdraw the Richards Bay property they could do so only with due regard to the principles of administrative justice. The Court found that but for the mistake committed in 1995 the appellant would in all likelihood have received the benefit of a property acquisition judged against the then market values. The question was then to what extent the right to administrative justice entailed exemption from prejudicial effects of a functionary’s mistakes. As the mistake made was neither based on bad faith or administrative perversity the mistake committed was an innocent one. The committee, when they considered the situation in 1997, had to do so by not only giving fair consideration to the appellant’s tender but had also to consider its broader responsibilities which included the public benefit to be derived from obtaining a higher price by re-advertising the property. In these circumstances the Court stated that a measure of judicial deference was appropriate and refused to set aside the decision of the committee for this reason.</p> <p> [20] Notwithstanding its finding, set out above, the Court, in the <em>Logbro Properties </em>case, set aside the decision to re-advertise for tenders because the Court was of the opinion that procedural fairness demanded that the committee, in considering to re-advertise, should have afforded those tenderers, whose tenders complied, an opportunity to make representations before they took their decision to re-advertise. In the present case it would not only have been fair to afford the respondent an opportunity to make representations to the first appellant, considering that second appellant’s EPL’s covered the same area as those of the respondent, the first appellant was by Act of Parliament required to do so and he failed to comply.</p> <p>  </p> <p> [21] With reference to the case of <em>Oudekraal Estates v City of Cape Town,</em> 2004 (6) SA 222 (SCA) both counsel submitted that the Court had a discretion in judicial review proceedings either to uphold an invalid administrative act or to set it aside. Counsel submitted, albeit for different reasons, that this was an instance where the Court should uphold the decision by the first appellant to grant nuclear fuel EPL’s to the second appellant, even if it was found to be invalid. In pa. [36] of the <em>Oudekraal </em>case the following was stated by the Court, namely:</p> <p> “(A) court that is asked to set aside an invalid administrative act in proceedings for judicial review has a discretion whether to grant or to withhold the remedy. It is that discretion that accords to judicial review its essential and pivotal role in administrative law, for it constitutes the indispensable moderating tool for avoiding or minimising injustice when legality and certainty collide.”</p> <p>  </p> <p> [22] This finding is based on what is accepted in our law that even an invalid administrative act “…….(is) capable of producing legally valid consequences for so long as the unlawful act is not set aside.” (<em>Oudekraal </em> case, <em>supra,</em> pa. [26].) (See further <em>Standing Tender Committee v JFE Sapela Electronics,</em> 2008 (2) SA 638 (SCA); <em>Seale v Van Rooyen NO, </em>2008 (4) SA 43 (SCA); <em> City of Cape Town v Helderberg Park Development, </em>2008 (6) SA 12 (SCA) and <em>Chairperson, Eskom Holdings v New Reclamation Group, </em>2009 (4) SA 628 (SCA).)</p> <p>  </p> <p> [23] In deciding whether to uphold or set aside an invalid administrative act, the cases show that there are various factors which the Court must consider when exercising its discretion. In the <em>Sapela </em>case, <em>supra,</em> a tender was awarded to a firm Nolitha after the latter was allowed to change its tender some two months after the closing of tenders. The Court of first instance set aside the award of the tender to Nolitha, because of this irregularity, and on appeal it was found that the acceptance of the tender of Nolitha and the award of the contract to it, were correctly held to be reviewable. The Court, however, continued and stated that that was not the end of the matter but given the effluxion of time, and the extent of the work already performed by Nolitha by the time the relief was granted, the issue was whether the Court’s order, whereby Nolitha’s grant was set aside, was capable of practical implementation. The Court investigated the matter and found [pa. 27] that if the order of the Court <em>a quo</em> was implemented it was likely not only to be disruptive but to give rise to a host of problems, not only in relation to a new tender process, but also in relation to the work to be performed and it added that, apart from prejudice caused to the respondent, that there was a public interest element in the finality of administrative decisions. It stated that two further considerations should be added where a Court had to exercise its discretion whether to uphold or set aside an invalid administrative act, namely pragmatism and practicality. [pa. 28]. The Court upheld the invalid administrative act and allowed it to stand.</p> <p>  </p> <p> [24] An example of where the Court exercised its discretion against the upholding of an invalid administrative act was the case of <em>Eskom Holdings, supra, paras. [15] to [18].</em> In the present instance neither the first appellant nor the second appellant have set out any facts to show that the setting aside of the decision of the first appellant will cause prejudice to the second appellant as a result of the effluxion of time and/or that because of the work done by the second appellant in regard to the EPL’s a stage was reached which would render it impractical to reverse the situation. Consequently, there is no basis on which the Court can exercise its discretion in favour of upholding the decision by the first appellant should it conclude that it was invalid.</p> <p>  </p> <p> [25] However, Mr. Corbett referred the Court to an affidavit made by one Esme Trollip, the approved accredited agent of the respondent, from which it was clear that the respondent, through some misunderstanding, neglected to apply timeously for the renewal of its EPL’s. Such application had to be filed 90 days before the expiry of any licence of an EPL. (Sec. 72(2)(a).) The D-day for such applications was 20 March 2009. The above section of the Act empowers the first respondent to condone any late application for renewal of a licence provided that the application for condonation is submitted before expiry of the licence. In this instance that date was 20 June 2009. In a supplementary affidavit, handed in on the date of hearing of the appeal, Ms. Trollip stated that the respondent’s application was submitted on 11 June 2009. At the time of the hearing of this matter the application was still under consideration by the first respondent.</p> <p>  </p> <p> [26] As the first affidavit by Ms. Trollip only indicated that application for condonation would still be made, Mr. Corbett, in his heads of argument, submitted that there was no certainty that an application would in fact be forthcoming. This objection has now been taken care of in the supplementary affidavit by Ms. Trollip which showed that the necessary was done by the respondent and was done in time.</p> <p>  </p> <p> [27] Mr. Corbett also submitted that it was speculation for Ms. Trollip to state in her affidavit that good cause was shown in the application. Counsel submitted that the misunderstanding and miscommunication referred to, did not constitute good cause and that the affidavit by Mr. Koep, the legal practitioner for the respondent, that in his experience the first appellant usually condoned late applications, was of no evidentiary value. Counsel consequently submitted that the relief sought was academic and even if the Court should find that the Minister’s decision constituted an invalid administrative act it should be permitted to stand for reasons of practicality and pragmatism and also based on the principle of deference practised by the Courts.</p> <p>  </p> <p> [28] It is not the function of this Court to decide whether the first appellant will grant condonation to the respondent or not. However, it seems that in the past the first appellant had no problem to renew the EPL’s of the respondent. What is certain in this regard is that in terms of the provisions of sec. 71(3)(a) the licences of the respondent are still valid and will remain so until and unless the applications are refused by the first appellant. In my opinion it could therefore not be said that the issue of the administrative act has become academic and I agree with the conclusion of the Court <em>a quo </em>on this point.</p> <p>  </p> <p> [29] Both Mr. Trengove and Mr. Corbett submitted that the application for review should be dismissed because it was not shown that the respondent would suffer any prejudice as a result of the decision of the first appellant to grant EPL’s to the second appellant. Whether the issue of prejudice arises, depends of course on whether the administrative act by the first appellant, in granting the EPL’s to second appellant, was invalid. Both appellants accepted that there was non-compliance with sec. 69(2)(g)(i) and (ii) and to a certain extent they seem to also accept that the grant was invalid. Hence in argument they concentrated on defences to the application by the respondent rather than stress the merits of the application of the second appellant.</p> <p>  </p> <p> [30] It is therefore necessary to look at the provisions of sec. 69(2)(g) of the Act. The full text of the sub-section reads as follows:</p> <p> “Notwithstanding the provisions of subsection (i), the Minister shall not grant an application by any person for an exclusive prospecting licence -</p> <p> (g) in respect of any prospecting area or retention areas in relation to a mineral or group of minerals other than the mineral or group of minerals to which the exclusive prospecting licence or mineral deposit retention licence issued in respect of such areas relates, respectively, unless –</p> <ol><li> <p> such person has given notice in writing, not later than on the date on which such application is made, to the holder of the exclusive prospecting licence or mineral deposit retention licence to which such prospecting area or retention area, as the case may be, relates of his or her application or intended application, as the case may be, for such exclusive prospecting licence and has provided the Minister of proof in writing of having done so;</p> </li> <li> <p> the Minister has afforded the holder referred to in subparagraph (i) a reasonable opportunity to make representations in relation to such application;</p> </li> <li> <p> the Minister deems it, with due regard to representations made in terms of subparagraph (ii) if any, desirable in the interests of the development of the mineral resources of Namibia, to grant such licence; and</p> </li> <li> <p> the Minister is on reasonable grounds satisfied that prospecting operations carried on by virtue of such licence will not detrimentally affect the rights of any holder of an exclusive prospecting licence or a mineral deposit retention licence, as the case may be, in respect of any area.”</p> </li> </ol><p>  </p> <p> [31] Both counsel submitted that ordinarily a Court would not set aside an administrative decision on review unless it was shown that the applicant suffered prejudice. (See <em>Rajah &amp; Rajah v Ventersdorp Municipality, </em>1961 (4) SA 402 (AD) 407G – 408A; <em>Jockey Club of South Africa and Others V Feldman, </em>1942 AD 340 at 359; <em>South African Post Office v Chairperson, Western Cape Tender Board, </em>2001 (2) SA 675C at par. 22 and <em>du Plessis v Prokureursorde, Transvaal, </em>2002 (4) SA 344 (TPD) at 350C to E.)</p> <p>  </p> <p> [32] Mr. Trengove pointed out that sec. 69(g) was designed to protect the existing EPL holder against the risk that the prospecting operations of the new licensee might detrimentally affect his rights. He further argued that the respondent did not and could not contend that there was any such risk in this instance as it consented to Erongo’s applications for nuclear fuel EPL’s. It therefore could not suggest that second appellant’s prospecting for nuclear fuel minerals would in any way adversely affect its rights. Counsel further referred to the founding affidavit of Erongo where it was stated that the grant of EPL’s to the second appellant detrimentally affected Erongo’s rights in that this grant effectively precluded the grant of any EPL to Erongo for nuclear fuel minerals over that area. Counsel submitted that that was the high water mark alleged in the proceedings as far as prejudice went and, as Erongo had withdrawn, that was also no longer an issue.</p> <p>  </p> <p> [33] Mr. Corbett submitted that the relief sought in this matter was academic. He pointed out that the EPL’s of the respondent and that of the first appellant co-existed since 23 October 2006 and that according to the Mining Commissioner no objections of whatever nature had been lodged in the quarterly reports filed by the respondent or in any correspondence with the Ministry. Counsel referred to the statement by Haikali in which he remarked that as far as he was aware, the second appellant had not yet commenced any prospecting activities in terms of the 4 EPL’s granted to it and that Erongo and the respondent reserved their rights if the second appellant would in any way infringe those rights. So far no complaints by the respondent have been received. Counsel referred the Court to the case of <em>Beukes v Director-General, Department of Manpower and Others,</em>1993 (1) SA 19 (CPD) at 28J – 29C and submitted that the principle that the Court would not consider academic issues applied equally to matters where it was alleged that a decision maker had failed to comply with the <em>audi alteram partem</em> rule.</p> <p>  </p> <p> [34] Mr. Odendaal first of all referred to all the instances where the application of the second appellant failed to comply with the provisions of the Act and submitted that an irregularity in proceedings calculated to prejudice a party <em>prima facie</em> entitled such party to have the proceedings set aside (See the <em>Jockey Club </em>case, <em>supra,</em> at p 355 and <em>Greatex Knitwear (Pty) Ltd v Viljoen and Others, </em>1960 (3) SA 338 (TPD) 343 C –E). Counsel further submitted that the onus was strictly on the party who defended an application for review to adduce evidence and prove that the failure to comply with the requirements of legality did not cause prejudice to the other party. (See, <em>inter alia,</em> <em>Cohen v South African Pharmacy Council, </em>1993 (1) SA 297 (CPD) at 303 H – J; <em>Grove Primary School v Minister of Education and Others, </em>1997 (4) SA 982 (CPD) at 997 H – I and <em>Financial Services Board and Another v De wet N.O. and Others, </em>2002 (3) SA 525 (CPD) at 616F). It was therefore incumbent on the appellants to produce evidence showing that no prejudice was suffered by the respondent, and that as they had not done so, the issue of prejudice failed at the first hurdle. (See <em>inter alia, SA Geneeskundige en Tandheelkundige Raad v Kruger, </em>1972 (3) SA 318(AD) at 326 F – G and <em>Rajah and Rajah v Ventersdorp Municipality, supra, </em>at 407G – 408A).</p> <p>  </p> <p> [35] A reading of sec. 69(2)(g) shows that the provisions are couched in peremptory language….“<em>(the) Minister shall not grant an application by any person for an exclusive prospecting licence……….unless.” </em>The section first of all prohibits the granting of EPL’s for the same minerals, or group of minerals, over an area where there are existing EPL’s. It furthermore prohibits the granting of such EPL’s unless notice of the application was given to the holder of the existing EPL’s in writing by the new applicant and proof thereof was provided to the Minister. The Minister was then required to afford the existing holder a reasonable opportunity to make representations to him in relation to the application. The Minister in turn must consider the representations for two reasons. Firstly to decide whether, with reference to the representations, it is desirable in the interest of the development of the mineral resources of Namibia, to grant such licence, and secondly, he must be satisfied that the prospecting operations carried on by virtue of such new licence will not detrimentally affect the rights of any existing holder of the EPL’s. There is a clear correlation between the two duties of the Minister because interference with the rights of an existing holder may affect in many ways the development of a particular mineral resource by the existing holder of the EPL’s and may therefore not be desirable in the interests of Namibia. By not affording respondent an opportunity to make representations, the first appellant deprived himself from fulfilling the statutory duties which were entrusted to him by the Act. This is also relevant to Mr. Corbett’s argument that the Court must show deference to the difficult technical decisions which the first appellant is required to make in order to develop mineral resources to the benefit of the Country. By not calling for representations from the respondent, the first appellant could not properly fulfil this function and the issue does therefore not arise in this instance.</p> <p>  </p> <p> [36] Mr Trengove’s argument that by consenting to Erongo’s applicdations for EPL’s over the existing EPL’s held by it, the respondent could not now suggest interference with its rights where second respondent was concerned, loses sight of the fact that in the first instance, in terms of its agreement with Erongo, respondent would have been in control of the operations. That is not the case where the EPL’s are in the hands of second appellant over whom he has no control. I also agree with Mr. Odendaal that Erongo’s claim that it was prejudiced by the granting of the EPL’s to second appellant, in the sense that it was now precluded from applying for those EPLs itself, applies only to Erongo and it does not reflect upon the respondent.</p> <p>  </p> <p> [37] Mr. Corbett’s submission that the respondent has never complained about interference by the second appellant with its rights, begs the question in the light of Haikali’s allegation that as far as he knew no prospecting had yet been done by second respondent. This statement, which is part of the founding affidavit, was clearly made before the second appellant’s applications were filed as part of the proceedings before the first appellant. Once it was clear that the applications were flawed in many respects, reliance was placed on these aspects and it was indicated in the supplementary affidavit to what extent representations could have been placed before the first appellant in regard thereto.</p> <p>  </p> <p> [38] For that reason counsel’s reliance placed on the <em>Beukes </em>case, <em>supra, </em>is not helpful. The facts of that case were exceptional and distinguishable from the present case. In that matter the applicant claimed certain protection which he was not entitled to by virtue of the provisions of an Act of Parliament, which excluded persons, such as the applicant, from claiming reliance on the Act. When this was raised in the affidavit of the respondent the applicant merely replied that he had no knowledge thereof but that in any event he did not accept the correctness of the allegations. The Court nevertheless found that applicant should have been afforded an opportunity to make representations. The futility of allowing the applicant to make representations in the light of the provisions of the Act and his own lack of knowledge, regarding his position, prompted the Court to find that even if he had been given an opportunity to make representations it was clear that there was nothing that the applicant could have added to change the situation and he therefore did not suffer any prejudice. That, as I will attempt to show later, is not the position in the present matter.</p> <p>  </p> <p> [39] At this stage it would be convenient to refer to the instances in which the applications of the second appellant fell short of the requirements of the Act. These shortcomings were not only concerned with a lack of information which was required by the Act but also contained misleading statements. These shortcomings were over and above the fact that there was no compliance with sec 69(2)(g). In the following respects the applications of the second appellant did not comply with the Act or did not comply fully therewith, namely:</p> <p> (a) Sec. 68(c) requires that an application for an EPL shall contain a detailed plan of the area to which the application relates with reference to the magisterial districts over which it applies and the names and number of each farm situated within the areas as well as reference to the extent of such area by reference to identifiable physical features. It was pointed out by Mr. Odendaal that no plan or map was submitted and in one instance the name and numbers of the farms concerned were not provided. I also agree with counsel that the first appellant’s contention that these were not requirements of the Act has no substance. The purpose of this requirements is to assist the first appellant and to demonstrate to what extent the granting of the EPL’s applied for may overlap and infringe upon the rights and activities of an existing EPL holder. This is one of the issues which the first appellant must consider before granting a licence.</p> <p> (b) Non-compliance with secs. 68(h) and 69(2)(c)(i). As pointed out by counsel these sections require details concerning the envisaged prospecting programme, the duration of prospecting activities and the expenditure to be incurred in respect thereof. This would be a further demonstration of what impact such activities may have on the existing EPL’s. The significance of this requirement is further underscored by sec. 72(3) which requires that the Minister shall not renew an EPL unless he is satisfied on reasonable grounds with the manner in which the programme of prospecting operations has been carried out or he is satisfied with the expenditure expended in respect of such operations. It follows from this that if there is not a detailed programme of operations and expenditure that the Minister, when it comes to the renewal of the EPL, will have no means against which he can determine rate of prospecting operations or compare the expenditure expended in respect of the operations. It is seemingly for this reason that sec. 69(2)(c)(i) requires that the Minister shall not grant an EPL unless he is satisfied on reasonable grounds with the proposed programme of prospecting operations or the proposed expenditure to be expended in respect thereof. Although both appellants deny non compliance with these sections a reading of the second appellant’s applications proved the inadequacy of the information supplied.</p> <p> (c) Non-compliance with sec. 68(g). This section concerns documentary proof, or such other proof as may be required by the Commissioner, of the technical and financial resources of, or available to the person carrying on the prospecting operations. The second appellant’s compliance with this requirement consists of a signed letter by one Von Palace in which he undertook to provide N$10m on behalf of a named company. There was no indication whether Von Palace was authorized by the company to make such offer or any indication of whether Von Palace or the company had the means to make good on its offer. In this regard it was admitted on behalf of the first appellant that Von Palace was unknown to the Mining Commissioner and the first appellant.</p> <p> (d) Further complaints by the respondent were the irregular copying of information of its application forms contained in the applications of the second appellant as well as the fact that first appellant relied on and approved second appellant’s EPL’s on the basis of a recommendation by the Mining Commissioner which in turn was based on an exploration programme set out by the second appellant which was completely different to the area for which the EPL were ultimately granted. The description was of an area falling totally outside the area applied for by the second appellant and in certain respects was more that a 100 kilometres away from it. The explanation for this by the first appellant was unacceptable.</p> <p>  </p> <p> [40] Where it has been proved that an irregularity has been committed which <em>prima facie </em>is calculated to prejudice the other party the onus to prove that that party has not suffered prejudice is on the party opposing the review, in this instance the appellants. (See <em>Jockey Club of South Africa and Others v Feldman, </em>1942 AD 340 at 359; <em>S.A. Geneeskundige en Tandheelkundige Raad v Kruger, </em>1972 (3) SA 318 (AD) at 326E-G; <em>Grove Primary School v Minister of Education and Others, </em>1997 (4) SA 982(CPD) at 997F-I and <em>Financial Services Board and Another v De Wet NO and Others, </em>2002 (3) SA 525 at E-G).</p> <p>  </p> <p> [41] In this instance it was conceded that the first appellant did not comply with its statutory duty in terms of sec. 69(2)(g) by inviting the respondent to make representations to him before he granted the EPL’s to the second appellant. Non-compliance with the <em>audi alteram partem </em>rule, where that was necessary, constituted an irregularity which is <em>prima facie </em>calculated to prejudice the party requesting review (i.e. the respondent). A reading of the cases shows that potential prejudice would suffice to set aside a decision on review and I agree with the Judge <em>a quo</em> that the respondent was prejudiced by not having had an opportunity to put representations before the first appellant. There was much which it could draw attention to, uninhibited by the rules of the law of evidence. All this was pointed out in the affidavits on behalf of the respondent. I therefore do not agree with counsel that there was no prejudice suffered by the respondent and that the application for review was academic. If the respondent was given an opportunity to place representations before the first appellant there is in my opinion little doubt that the outcome of second appellant’s application might have been different.</p> <p>  </p> <p> [42] Both appellants also raised the defence of “unclean hands” and submitted that the respondent’s application should be dismissed on these grounds. The background to this defence is the irresponsible and misleading public announcement made by Reefton concerning respondent’s “new discovery” of uranium at the farm Hakskeen and further action taken by the respondent and Reefton flowing from this announcement. Both counsel further submitted that the respondent targeted uranium from the very start notwithstanding the fact that it did not hold any rights to prospect for nuclear fuel minerals. Counsel submitted that once it discovered uranium, the respondent did not notify the mining inspector of its find, as required by the Act, and continued to concentrate its prospecting activities on that metal.</p> <p>  </p> <p> [43] Although there is no evidence that the respondent targeted uranium as such from the start of its activities I will accept for purposes of the judgment the arguments and the submissions of counsel for the appellants that there is evidence that once the discovery was made, the respondent did not inform the mining inspector immediately of its find and, that thenceforth, its activities were very much aimed at prospecting for uranium. I also agree with the criticism, made by counsel for the appellants, against the announcement made of the “new discovery” and which favourably influenced the shareholding of Reeftons.</p> <p>  </p> <p> [44] Counsel on behalf of both appellants also criticized the way in which Erongo’s application was used by Reefton and/or respondent to get its hands on nuclear fuel minerals by using Erongo, as a fully owned Namibian company, to apply for EPL’s for nuclear fuel minerals whereas once the EPL’s were granted, the joint venture agreement would allow Reefton, through its subsidiary, Black Range, to acquire the majority shareholding in Erongo’s holding company. In this way Reefton would in effect become the holder of the EPL’s. At least the respondent and Erongo did not hide Reefton’s involvement with Erongo and, when called for, provided the first appellant with the joint venture agreement. The allegation that the agreement was purposely kept away from the first appellant is no more than speculation.</p> <p>  </p> <p> [45] Mr. Odendaal submitted that the Court should reject the reliance placed on the doctrine of “unclean hands”. Firstly counsel submitted that the doctrine found its application in the fraud, dishonesty or mala fides of a party approaching a court for the protection of his rights. There is no allegation on the affidavits of the appellants that the respondent was guilty of any of these requirements in regard to the rights which the respondent sought to enforce in these proceedings. Secondly, counsel submitted that, for the doctrine to apply, there should be a <em>nexus</em> between the alleged wrongful conduct and the basis for the relief sought. This <em>nexus, </em>counsel submitted, was absent from the present matter.</p> <p>  </p> <p> [46] All counsel were in agreement that the doctrine would apply in circumstances where there was some or other dishonesty on the part of the person who claimed protection for his rights. They were also in agreement that primarily the doctrine found its application in the field of unlawful competition where an applicant sought to interdict a competitor for unlawful conduct in circumstances where the applicant himself was trading dishonestly and nevertheless sought protection from the Court which would then allow him to continue his dishonest trading. (See in this regard <em>Tullen Industries v de Sousa Costa (Pty) Ltd &amp; Others,</em> 1976 (4) SA 218 (TPD) at 221 E – H and <em>Mqoqi v City of Cape Town &amp; Another, </em>2006 (4) SA 355 (CPD) at para [140].)</p> <p>  </p> <p> [47] The only issue now before the Court, as was also pointed out by counsel for the first appellant, is the grant of nuclear fuel EPL’s to the second appellant over the existing EPL’s of the respondent. It follows from that that the only right in respect of which the respondent could claim protection for is its rights to explore for base and rare metals, industrial minerals, precious metals and precious stones which it holds in terms of those EPL’s. That is also the only basis on which the respondent could have <em>locus standi </em>to continue with the application after the withdrawal of Erongo. The criticism levelled at the respondent by the appellants concerned the respondent’s dealings with the so-called new discovery of uranium and its attempts to acquire EPL’s for nuclear fuel minerals. That this has nothing to do with its existing EPL’s, and its rights flowing therefrom, was also recognized by the first appellant when it renewed the respondent’s application for the extension of these EPL’s in 2008 and was found, correctly by the Court <em>a quo</em>, to be of significance in coming to the conclusion that it should reject the appellants’ defence based on the doctrine of “unclean hands”. Mr. Odendaal’s submission that there is no allegation of impropriety as far as the respondent’s rights to prospect for the minerals and metals it holds in terms of its existing EPL’s is concerned, is correct.</p> <p> [48] In the matter of <em>Schuster v Guenther, </em>1933 SWA 19 at page 25, v.d. Heever, J (as he then was) stated the following:</p> <p> “A man who has entered into a contract which is prohibited by law, or which though in itself permissible, was entered into for mischievous purposes, or for purposes prejudicial or offensive to the public or to third parties, is not deprived of legal remedies in regard to his innocent transactions. “</p> <p>  </p> <p> [49] Likewise in the matter of <em>Tjospomie Boerdery (Pty) Ltd v Drakensberg Botteliers (</em>Pty<em>) Ltd, </em>1989 (4) SA 31 it was held that false allegations made by a litigant during the course of litigation which were unrelated to the basis upon which relief was sought by that party in the proceedings, were irrelevant. The learned Judge said the following on p60 C-D:</p> <p> “There is nothing to suggest that it may emerge that Drakensberg Botteliers and the JJ Vermooten Trust have not approached the Court with clean hands. The fact that it may be shown that Vermooten junior falsely denied having consented to the transfer of shares to Tjospomie Boerdery cannot alter that conclusion. The Snyman’s <em>coup</em> is the basis of the conclusion that a winding-up order is just and equitable. Any such false denial by Vermooten junior was quite irrelevant. It played no part in arriving at the relevant conclusion of justice and equity. Therefore it cannot be used to suggest that Drakensberg Botteliers and the JJ Vermooten Trust have not approached the Court with clean hands. It is simply irrelevant.”</p> <p>  </p> <p> [50] Although the remarks made by v.d. Heever, J, in the <em>Schuster</em> case, <em>supra,</em> was in connection with the enforcement of a contractual right <em>and</em> the present case deals with the protection of a right, the principle applied is the same, namely, that a Court does not deny a person access thereto in respect of the enforcement of his rights, or the protection thereof, if not contaminated by some or other act of dishonesty or other impediment as referred to by v.d. Heever, J. To do otherwise will run counter to the principle that the Court will not close its doors to a litigant except in exceptional circumstances such as was, <em>inter alia,</em> mentioned by the learned Judge. To do so in unjustifiable circumstances will also run counter to Art. 12 of our Constitution where that right is guaranteed.</p> <p>  </p> <p> [51] In the present matter the rights which the respondent seeks to protect are his rights in terms of his existing EPL’s. Those rights are not contaminated by any act of dishonesty, or fraud or mala fides and neither was it alleged that that was the case. The issue around the applications for nuclear fuel minerals, and the acts flowing therefrom, are simply irrelevant, and play no role in the litigation which the Court must adjudicate, namely the review of the granting of EPL’s to the second appellant.</p> <p>  </p> <p> [52] For the same reasons the defence based on the doctrine that a person should not be allowed to benefit from his own wrongs cannot be sustained. No wrong was committed by the respondent in regard to his existing EPL’s and the respondent has consequently not been benefiting from any wrong committed by it.</p> <p>  </p> <p> <strong>THE CROSS-APPEAL.</strong></p> <p> [53] The cross-appeal concerns an application to strike out various parts of the founding and replying affidavits of Haikali, the deponent on behalf of Erongo. The application was successful in its entirety and the Court <em>a quo</em> ordered the respondent to pay the costs of the application on a scale as between attorney and client.</p> <p> [54] The matter was somewhat complicated by reason of the fact that the first appellant’s answering affidavit was filed late which necessitated a further replying affidavit by Haikali. The respondent appealed against the entire order by the Court <em>a quo</em> and asked that it be dismissed with costs.</p> <p>  </p> <p> [55] Mr. Barnard, on behalf of the second appellant, submitted firstly that the striking out order by the Court <em>a quo </em>was interlocutory and was not appealable as of right. Counsel submitted that it was not a judgment or order as required by sec. 18(1) of the High Court Act, Act 16 of 1990. He referred to the matter of <em>Namibia Grape Growers and Exporters Association and Others v The Minister of Mines and Energy and Others, </em>2004 NR 194 (SC) where the Court stated as follows at p222F:</p> <p> “For the reasons set out above the third respondent’s cross-appeal against certain costs orders made by the Court <em>a quo </em>during the course of the proceedings is also not properly before the Court as no leave to appeal was sought in those instances. Counsel for the respondent conceded also that the matters could not be heard by this Court and they are likewise struck from the roll.”</p> <p>  </p> <p> [56] A reading of that case, as was also pointed out by Mr. Tötemeyer, showed that the Court was there dealing with appeals against costs orders only which were made during the proceedings where interim orders were granted or refused by the Court <em>a quo</em>. Such orders were not appealable as of right in terms of sec. 18(3) of Act 16 of 1990 and as no leave to appeal was obtained they were struck off the roll. In the present instance Mr. Tötemeyer submitted that the appeal does not only concern a cost order made by the Court <em>a quo</em> but it is an appeal against an order made by that Court in terms of which certain portions of allegations made by Erongo were struck out by the Court. In that regard this cross-appeal is different from what the Court was dealing with in the <em>Namibia Grape Growers </em>case, <em>supra.</em></p> <p>  </p> <p> [57] Generally, interlocutory orders are not appealable as of right as they lack the attributes required for a judgment or order which is appealable in terms of sec. 18(1) of Act 16 of 1990. (See <em>Zweni v Minister of Law and Order, </em>1993 (1) SA 523 (AD) at 533G-H and 536A-C which was applied with approval in the case of <em>Aussenkehr Farms (Pty) Ltd v Minister of Mines and Energy, </em>2005 NR 21 (SC) at 29 A-E). However, if the striking out order was final in effect, and although it may lack some of the attributes of a judgment or order, required for an appeal as of right, it may nevertheless have a definitive and final bearing on the rights of the parties, in which instance it would be appealable as of right. See in this regard <em>Moch v Nedtravel (Pty) Ltd t/a American express Travel Service, </em>1996 (3) SA 1 (AD), where the Appeal Court, dealing with a refusal by the Judge <em>a quo </em>to recuse himself,<em> </em>Hefer, JA, stated the following with reference to the general test for appealability as set out in the <em>Zweni </em>case:</p> <p>  </p> <p> “On the other hand, because it is not definitive of the rights about which the parties are contending in the main proceedings and does not dispose of any of the relief claimed in respect thereof, it does not conform to the norms in the cited passage from the judgment in <em>Zweni’s </em>case and thus seems to lack the requirements for a ‘judgment or order’. However, the passage in question does not purport to be exhaustive or to cast the relevant principles in stone. It does not deal with a situation where the decision, without actually defining the parties’ rights or disposing of any relief claimed in respect thereof, yet has a very definitive bearing on these matters.” (p10E-F).</p> <p>  </p> <p> [58] Similar views were expressed in the case relied on by Mr. Tötemeyer namely <em>Phillips v National Director of Public Prosecutions, </em>2003 (6) SA 447 (SCA) where Howie, P, stated as follows:</p> <p> “[20] Counsel for the respondent is right, in my view, in submitting that a restraint order is only of interim operation and that, like interim interdicts and attachment orders pending trial, it has no definitive or dispositive effect as envisaged in <em>Zweni. </em>Plainly, a restraint order decides nothing final as to the defendant’s guilt or benefit from crime, or as to the propriety of a confiscation order or its amount. The crucial question however, is whether a restraint order has final effect because it is unalterable by the Court that grants it.</p> <p> [21] …</p> <p> [22] Absent the requirements for variation or rescission laid down in s 26(10)(a) (and leaving aside the presently irrelevant case of an order obtained by fraud or in error) a restraint order is not capable of being changed. The defendant is stripped of the restrained assets and any control or use of them. Pending the conclusion of the trial or the confiscation proceedings he is remediless. That unalterable situation is, in my opinion, final in the sense required by the case law for appealability.”</p> <p>  </p> <p> [59] An application to strike out certain allegations in a pleading or affidavit can, under certain circumstances, have a final effect on a party’s case where the allegations to be struck out concern the cause of action, or evidence to support such cause, of a party’s case. On the other hand the fact that allegations have been struck out from a pleading or affidavit may have little or no effect on the issues to be decided by a Court.</p> <p>  </p> <p> [60] According to the case law the above distinction determines whether the striking out was final and definitive of the rights of the parties, and therefore appealable as of right, or whether it was interlocutory in which case leave to appeal was necessary. In the case of <em>Harper v Webster,</em> 1956 (2) SA 495 (FC) the following was stated on p. 504 by Clayden FJ, namely:</p> <p>  </p> <p> “….the decision on the application to strike out, based as it was not on the contention that the claim was unjustified in law but on the manner in which it was pleaded, was an interlocutory order.”</p> <p>  </p> <p> [61] The above excerpt was cited with approval by Miller, JA, in the matter of <em>South African Motor Industry Employers’ Association v South African Bank of Athens Ltd, </em>1980 (3) SA 91 (AD) at 98D-F where the learned Judge also applied the principle to exceptions. A further instance where the <em>Harper</em> case, <em>supra, </em>found application was<em> Charugo Development Co. (Pty) Ltd v Maree N.O.,</em> 1973 (3) SA 759 (AD) where Botha, JA, remarked as follows on p. 764A-C:</p> <p> “It is clear from the judgment of the learned Judge <em> a quo</em> that the order striking out annexure “B” and all the words after “Chiddy” in para. 3 of the declaration, was based not on any consideration that the plaintiff’s claim was bad in law, but on the manner in which it was pleaded in para. 3.</p> <p> ………The order to strike out being therefore, clearly based on the manner in which the claim was pleaded in para. 3, it was purely interlocutory and, therefore, not appealable save with the necessary leave.”</p> <p> <br />  </p> <p> [62] The case of <em>Caroluskraal Farms (Edms) Bpk and Others v Eerste Nasionale Bank van Suider-Afrika Bpk, </em>1994 (3) SA 407 (AA) dealt with motion proceedings.<em> </em>In the Court <em>a quo </em>the respondent, then as applicant, applied for the liquidation of the appellants. The respondents, now the appellants, availed themselves with certificates issued in terms of sec. 21(1) of Act 28 of 1966 whereby all actions to recover debts from the holder of the certificates were suspended. The parties further agreed to request the Court to adjudicate the point <em>in limine </em>separately. The Court of first instance found that such certificates were not a bar to the liquidation proceedings. The appellants thereupon launched an appeal against such finding and because of the nature of the proceedings the parties were requested to also deal with the issue of appealability. Hefer, JA, stated that although the decision by the Court <em>a quo</em> did not have the attributes required for a judgment or order, as far as the appellants were concerned, the judgment was final in effect and therefore appealable. The following was stated by the learned Judge at p416 C-E:</p> <p> “Wanneer dit dan – hetsy in ‘n aksie of in mosieverrigtinge – gaan om ‘n spesiale verweer wat afsonderlik verhoor is, kom dit my logies voor om te let op die effek van die uitspraak op die regshulp wat deur die <em>verweerder </em>of<em> respondent </em>aangevra is. In wese is die Verhoorhof in so ‘n geval gemoeid met ‘n versoek van die verweerder of die respondent om die eis van die hand te wys op grond van ‘n verweer wat niks te make het met die meriete van die saak nie. Dit is die regshulp wat op hierdie stadium ter sprake is.</p> <p> In die onderhawige geval was die Verhoorhof ook slegs gemoeid met ‘n versoek van die destydse respondent om die likwidasie-aansoeke van die hand te wys op grond van die sertifikate. Soos reeds aangedui, is daardie versoek uitdruklik en onherroeplik van die hand gewys. Wat vorm sowel as effek betref, is ‘n geskilpunt wat spesiaal deur die destydse respondent geopper is met ‘n versoek om die aansoeke op grond daarvan van die hand te wys, finaal uitgeskakel. Myns insiens is die bevel wat gemaak is inderdaad ‘n ‘bevel’ wat vatbaar is vir appel.”</p> <p> (When – either in an action or motion proceedings – it concerns a special defence which is adjudicated separately, it seems logical to me to consider the effect of the judgment on the relief claimed by the <em>defendant </em>or the <em>respondent. </em>In essence the Trial Court is in such an instance dealing with a request by the defendant or the respondent to dismiss the claim on the bases of a defence that has nothing to do with the merits of the case. That is the relief which at that stage is to be considered.</p> <p> In the present instance the Trial Court was only dealing with a request by the erstwhile respondent to dismiss the liquidation applications on the bases of the certificates. As pointed out earlier that request was expressly and irrevocably rejected. Regarding its form as well as its effect, an issue which was specially raised by the erstwhile respondent with the request to dismiss the applications on that bases, was finally ruled out. In my opinion the order that was made was indeed an ‘order’ which is appealable.) (my free translation)</p> <p> <br />  </p> <p> [63] Applying the above principles to the striking out application in this matter it is clear that it does not have the attributes, referred to in <em>Zweni’s </em>case, to be a judgment or order. It does not deal with the merits of the case and consequently is not definitive of the rights about which the parties are contending in the main application, nor does it dispose of any of the relief claimed in respect thereof. This poses the question whether it can nevertheless be said that the order has a final and definitive bearing on the rights of the parties. In my opinion not. It was firstly never intended to finally bring to an end the relief claimed by the respondent in the main application for review. Secondly the form and effect of the striking out order, in this instance, had no bearing on the relief claimed by the respondent in the main application. Notwithstanding the striking out order the respondent was successful in the Court <em>a quo </em>as well as in this Court. The application, based as it was on alleged hearsay matter, vexatious and scandalous matter and new evidence, concerned the way in which this evidence was ‘pleaded’ or presented and not on considerations that the application lacked grounds to sustain the relief claimed. I am therefore of the opinion that the application to strike out was interlocutory and that in terms of sec 18(3) of Act 16 of 1990 it was necessary for respondent to obtain leave to appeal from the Court<em> a quo</em>, or, if that was refused, to petition the Chief Justice for such leave. As no leave to appeal was obtained the cross-appeal is not properly before us and must be struck off the roll.</p> <p>  </p> <p> [64] For the reasons stated herein before I have come to the conclusion that the appeals of the first and second appellants must be dismissed and that the cross-appeal must be struck off the roll. In my opinion the issue concerning the striking out did not require the attention of two instructed counsel and I shall only allow the costs of one such counsel. It was further clear that the learned Judge <em>a quo </em>mistakenly referred to pa. 3.1 of the notice of motion instead of pa. 1.3 when he issued the order in this matter and this must be corrected.</p> <p>  </p> <p> [65] In the result the following orders are made:</p> <p>  </p> <p> <strong>A. THE APPEALS.</strong></p> <p> 1. The appeals of the first and second appellants are dismissed with costs, such costs to include the costs of one instructing and two instructed counsel.</p> <p> 2. Paragraph 1 of the order of the Court <em>a quo </em>is hereby amended by deleting the numbers 3.1 where they appear in the paragraph and to substitute therefore the numbers 1.3.</p> <p>  </p> <p> <strong>B. THE CROSS-APPEAL.</strong></p> <p> The cross-appeal is struck off the roll with costs such costs to include the costs of one instructing and one instructed counsel.</p> <p> <br />  </p> <p> _______________</p> <p> <strong>STRYDOM, AJA</strong></p> <p>  </p> <p> I agree,</p> <p> <br />  </p> <p> ______________</p> <p> <strong>CHOMBA, AJA</strong></p> <p> <br />  </p> <p> <br />  </p> <p> <br />  </p> <p> I agree,</p> <p> <br />  </p> <p> <br />  </p> <p> <br />  </p> <p> _______________</p> <p> <strong>DAMASEB, AJA</strong></p> <p> <br />  </p> <p> <br />  </p> <p> <br />  </p> <p> <br />  </p> <p> Counsel on behalf of the First Appellant: Mr. A. W. Corbett</p> <p> Instructed By: Government Attorneys</p> <p> <br />  </p> <p> Counsel on behalf of Second Appellant: Mr. W. Trengove, SC</p> <p> Assisted By: Mr. T. Barnard</p> <p> Instructed By: Diekmann Associates</p> <p> <br />  </p> <p> Counsel on behalf of the Respondent: Mr. F. H. Odendaal, SC</p> <p> Assisted By: Mr. R. Tötemeyer</p> <p> Instructed By: Koep &amp; Partners</p> <p> <br />  </p></span></div></div> </div> </div> Mon, 05 Oct 2020 14:46:07 +0000 Anonymous 9005 at http://namiblii.org Black Range Mining (Pty) Ltd v Minister of Mines And Energy N.O and Others (SA 9 of 2011) [2014] NASC 4 (26 March 2014); http://namiblii.org/na/judgment/supreme-court/2014/4 <span class="field field--name-title field--type-string field--label-hidden">Black Range Mining (Pty) Ltd v Minister of Mines And Energy N.O and Others (SA 9 of 2011) [2014] NASC 4 (26 March 2014);</span> <div class="field field--name-field-flynote field--type-entity-reference field--label-above"> <div class="field__label">Flynote</div> <div class='field__items'> <div class="field__item"><a href="/taxonomy/term/786" hreflang="und">EL</a></div> <div class="field__item"><a href="/taxonomy/term/335" hreflang="und">Procedural Fairness</a></div> <div class="field__item"><a href="/taxonomy/term/560" hreflang="und">Precautionary and preventive principles</a></div> <div class="field__item"><a href="/taxonomy/term/571" hreflang="und">Protected areas (general)</a></div> <div class="field__item"><a href="/taxonomy/term/589" hreflang="und">Land use</a></div> <div class="field__item"><a href="/taxonomy/term/472" hreflang="und">Constitutional Interpretation</a></div> </div> </div> <span class="field field--name-uid field--type-entity-reference field--label-hidden"><span>Anonymous (not verified)</span></span> <span class="field field--name-created field--type-created field--label-hidden">Mon, 10/05/2020 - 14:45</span> <div class="clearfix text-formatted field field--name-field-headnote-and-holding field--type-text-long field--label-above"> <div class="field__label">Headnote and holding</div> <div class="field__item"><p>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.</p> <p>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.</p> <p>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. </p> <p>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. </p> <p>Following this, the appellant's case was dismissed with costs.</p> </div> </div> <div class="field field--name-field-files field--type-file field--label-above"> <div class="field__label">Download</div> <div class='field__items'> <div class="field__item"> <span class="file file--mime-application-rtf file--general"> <a href="https://media.namiblii.org/files/judgments/nasc/2014/4/2014-nasc-4.rtf" type="application/rtf; length=630618">2014-nasc-4.rtf</a></span> </div> <div class="field__item"> <span class="file file--mime-application-pdf file--application-pdf"> <a href="https://media.namiblii.org/files/judgments/nasc/2014/4/2014-nasc-4.pdf" type="application/pdf; length=337564">2014-nasc-4.pdf</a></span> </div> </div> </div> <div class="clearfix text-formatted field field--name-body field--type-text-with-summary field--label-hidden field__item"><p> <strong>IN THE SUPREME COURT OF NAMIBIA</strong></p> <p>  </p> <p> <strong>CASE NO.: SA 09/2011</strong></p> <p>  </p> <p> <strong>DATE: 26 MARCH 2014</strong></p> <p>  </p> <p> <strong>REPORTABLE </strong></p> <p>  </p> <p> <strong>In the matter between:</strong></p> <p>  </p> <p> <strong>BLACK RANGE MINING (PTY) LTD...............................................................APPELLANT</strong></p> <p>  </p> <p> <strong>And</strong></p> <p>  </p> <p> <strong>MINISTER OF MINES AND ENERGY N.O.....................................FIRST RESPONDENT</strong></p> <p>  </p> <p> <strong>MINING COMMISSIONER OF NAMIBIA N.O........................SECOND RESPONDENT</strong></p> <p>  </p> <p> <strong>JONAS NAKALE N.O........................................................................THIRD RESPONDENT</strong></p> <p>  </p> <p>  </p> <p> <strong>Coram: SHIVUTE CJ, STRYDOM AJA and O’REGAN AJA</strong></p> <p>  </p> <p> <strong>Heard: 09 November 2012</strong></p> <p>  </p> <p> <strong>Delivered: 26 March 2014</strong></p> <p>  </p> <p> <strong>APPEAL JUDGMENT </strong></p> <p>  </p> <p>  </p> <p> <strong>SHIVUTE CJ (STRYDOM AJA and O’REGAN AJA concurring):</strong></p> <p>  </p> <p> <strong>Background</strong></p> <p>  </p> <p> [1] This appeal concerns a challenge to the decision of an official in the Ministry of Mines and Energy who refused to accept two applications for exclusive prospecting licences made on behalf of the appellant. On 16 June 2009, a representative of the appellant presented two applications for exclusive prospecting licences (the EPL applications) in respect of the nuclear fuel minerals group for the areas informally known as ‘Sandamap’ and ‘Eureka’ in the Karibib district, Erongo Region at the offices of the Mining Commissioner (the second respondent). The EPL applications were submitted for consideration by the first respondent, the Minister of Mines and Energy (the Minister) who is responsible for the administration of the Minerals (Prospecting and Mining) Act 33 of 1992 (the Act). The third respondent, a former employee in the office of the second respondent to whom the appellant presented the EPL applications, advised the representative of the appellant that the Minister would not accept any application for mineral licences in respect of the nuclear fuel minerals group, because of the existence of 'a two-year moratorium' which prohibited new applications for prospecting or mining of any nuclear fuel group minerals. The third respondent accordingly declined to accept the EPL applications.</p> <p>  </p> <p> [2] Appellant's lawyers wrote to the second respondent on 3 July 2009, expressing their opinion that the ‘moratorium’ was ultra vires s 122 of the Act and in effect informing him that should he refuse to receive and consider the applications, the appellant would seek legal redress. No response to this letter was received by the appellant.</p> <p>  </p> <p> [3] The appellant subsequently made application in the High Court seeking an order declaring the decision made by the third respondent declining to accept the EPL applications to be null and void, alternatively reviewing and setting aside the decision, and directing the respondents to receive the EPL applications. It also sought a costs order against any of the respondents opposing the application. It should be noted that despite the terms of the letter referred to in paragraph [2] above, no relief was sought in respect of the moratorium mentioned by the third respondent. The third respondent did not oppose the application and any reference to 'the respondents' hereafter is reference to the Minister and the Mining Commissioner.</p> <p>  </p> <p> [4] The respondents opposed the application and after hearing argument, the High Court dismissed the application with costs for the reasons stated later in this judgment. The appellant now appeals against the judgment and order of the High Court.</p> <p>  </p> <p> <strong>Application for condonation and reinstatement</strong></p> <p>  </p> <p> [5] The appeal record was not lodged within the period prescribed by rule 5(5) of the Rules of the Supreme Court. Furthermore, the appellant neglected to inform the registrar timeously that it had entered security for costs of the appeal as required by rule 8(3) of the Rules. It is now trite that where a litigant has failed to comply with the Rules of Court governing appeals, such appeal will be deemed to have lapsed. It may only be reinstated after the litigant has sought, and the court has granted, condonation.<a class="sdendnoteanc" href="#sdendnote1sym" name="sdendnote1anc" id="sdendnote1anc"><sup>1</sup></a></p> <p>  </p> <p> [6] The appellant accordingly made application for condonation and the reinstatement of the appeal. The application is unopposed. The lodging of the record and the notification of security for costs were late by 13 days. It appears from the founding affidavit that the legal practitioner responsible for the prosecution of the appeal neglected to properly consider rule 5(5) of the Rules of Court and relied on a South African text book which dealt with that jurisdiction's rules in terms of which the three-month period for the filing of the record and the giving of security for costs of the appeal is counted from the day the appeal is noted and not (as is the case with rule 5(5)) from the date of judgment. It was apparently for this reason that the appellant’s legal practitioner miscalculated the days allowed for delivery of the record and security for costs. He says it was the first time that he had to deal with an appeal in the Supreme Court.</p> <p>  </p> <p> [7] The issue of legal practitioners miscalculating the periods set out in the rules governing appeals due to reliance on South African rules has regrettably occurred twice in the recent past.<a class="sdendnoteanc" href="#sdendnote2sym" name="sdendnote2anc" id="sdendnote2anc"><sup>2</sup></a> It is also a matter of grave concern that of late nearly every appeal being heard in the Supreme Court is accompanied by an application for condonation for the failure to comply with one or other rule of the Supreme Court Rules. Legal practitioners intending to practise at the Supreme Court are advised to familiarise themselves with the rules of this Court to ensure that they do not mistakenly conflate them with court rules in other jurisdictions. Nevertheless having considered the reasons given for the delay, the relatively short period of the delay and the fact that the application for condonation is not opposed, we decided to grant condonation and reinstate the appeal. We then heard arguments on the merits and it is to this aspect that I propose to turn next.</p> <p>  </p> <p> <strong>Findings by the High Court</strong></p> <p>  </p> <p> [8] It was common cause among the parties that the 'two-year moratorium' relied upon by the first respondent was contained in Government Notice No. 41 of 2007 published in the Government Gazette of 15 March 2007 and purportedly issued in terms of s 122(1) of the Act (which will be referred to in this judgment as 'the notice'). The notice was couched in the following terms:</p> <p>  </p> <p> <strong>'MINISTRY OF MINES AND ENERGY</strong></p> <p> <strong>No. 41 2007</strong></p> <p>  </p> <p> <strong>RESERVATION OF AREA FROM PROSPECTING OPERATIONS AND MINING OPERATIONS IN RESPECT OF NUCLEAR FUEL MINERALS: MINERALS (PROSPECTING AND MINING) ACT, 1992</strong></p> <p>  </p> <p> Under section 122(1) of the Minerals (Prospecting and Mining) Act, 1992 (Act No. 33 of 1992), I declare that no person other than the holder of a reconnaissance licence shall, despite anything to the contrary in that Act or any other law, but subject to any right conferred upon the holder of any mining claim, exclusive prospecting licence, mineral deposit retention licence or mining licence by that Act before the date of this notice, and which exist on the date immediately before the date of this notice, carry on any prospecting operations and mining operations in respect of nuclear fuel minerals in, on or under any area in Namibia until further notice.</p> <p>  </p> <p> <strong>E. NGHIMTINA</strong></p> <p> <strong>MINISTER OF MINES AND ENERGY Windhoek, 22 February 2007'</strong></p> <p>  </p> <p> [9] It is to be noted that the notice does not provide for a two-year moratorium but for one of indefinite length, that is 'until further notice'. In dismissing the appeal, the High Court reasoned that the appellant was not entitled to challenge the validity of the notice without seeking express relief in that regard, in other words by means of a collateral attack. In reaching this conclusion, the court relied on South African case law which provides that a person seeking to challenge the validity of an administrative act collaterally may only do so if the relevant administrative act is coercive in its application to that person. The High Court found that the relevant administrative act in this case did not constitute coercive action that would support a collateral challenge. Accordingly, the court held that in the absence of a substantive application to set aside the notice, the court should proceed on the basis that the notice was valid. On the question whether or not the Minister should be directed to accept the EPL applications, the court held that no purpose would be served in directing him to receive the EPL applications in the light of the existence of the notice. It reasoned that to do so would amount to making decisions on academic issues.</p> <p>  </p> <p> <strong>Counsel's submissions on appeal</strong></p> <p>  </p> <p> [10] Mr Tötemeyer who argued the appeal on behalf of the appellant, submits that the High Court erred in finding that the appellant could not collaterally challenge the validity of the notice on the basis that no coercive action was employed by the administrative authority to compel the appellant to do or to refrain from doing something. It was contended that the appellant did not wish to attack the validity of the notice directly but that its validity was raised only because the respondents had relied thereon. Counsel submitted that although the factual matrix in the current matter is not a classic example of the cases in which a collateral challenge was allowed, the circumstances of this case 'are akin' to situations where a collateral challenge can be mounted against the decision of the public authority.</p> <p>  </p> <p> [11] Relying on the opinion of the learned English authors Wade and Forsyth in Administrative Law, 9 ed, at p 281, counsel argues that as a general rule a court will allow the issue of the validity of an administrative act to be raised in any proceedings where it is relevant. Counsel argues that the appellant has used the right remedy; is the right person in the right proceedings; no evidence was needed to substantiate the claim; the decision maker is a party to the proceedings, and the claimant suffered direct prejudice as a result of the alleged invalidity of the notice. Counsel argues furthermore that the scheme of s 47 (read with other relevant provisions of the Act, such as ss 67, 68 and 125) is such that once an EPL application has been submitted, it must be accepted (i.e. receipt thereof must be taken) by the Minister or by persons appointed by him or her to act on his or her behalf for that purpose.</p> <p>  </p> <p> [12] Counsel contends furthermore that the High Court agreed with the appellant that the Minister was not precluded by the notice from receiving and considering the EPL applications. Counsel argues that in terms of s 125 of the Act, the respondents were under an obligation to receive the applications and failure to do so would be ultra vires the Act. Key to argument on behalf of the appellant, was the contention that s 125 provides for an order of priority in the consideration of the applications. The chronological sequence determined by the date of the submission of the applications must be followed even after the moratorium had been put in place. As such, the Minister was under an obligation to receive the EPL applications. In the light of this consideration, so counsel contends, the High Court erred in holding that no advantage would be obtained by the appellant if the respondents were to be ordered to receive the EPL applications. Instead, appellant would obtain the benefit of s 125 which accords chronological priority to applications. If the applications were refused, appellant’s prior claim based on the date of the submission of the applications would be lost.</p> <p>  </p> <p> [13] It was counsel for the appellant's further submission that the respondents acted ultra vires the Act particularly because they could not justify the decision to refuse the EPL applications with reference to a statutory provision. The respondents could not rely on s 122 of the Act since the section only empowers the Minister to prohibit mining or prospecting operations in, on or under a particular land or area in Namibia, and not, as is the case with the notice, in respect of a particular minerals group in the whole country. It was counsel's further argument that it would offend the principle of separation of powers if the Minister were to be allowed to place a moratorium against exploration in respect of the entire country thereby undoing what Parliament had ordained in s 122. Accordingly, counsel urges for a 'constitutionally friendly' form of statutory interpretation that would respect the principle of separation of powers.</p> <p>  </p> <p> [14] In the alternative, counsel raises a constitutional argument that the appellant’s constitutional right to do business as enshrined in Art 21(1)(j) of the Namibian Constitution would be infringed if a strict construction were to be placed on the relevant provisions of the Act. Counsel argues that the purpose of issuing the notice was not what was intended by the Legislature in terms of s 122 of the Act, as the motivation for the issuing of the notice is contained in the first respondent’s reasoning in a letter addressed to the Minister of Justice and Attorney-General wherein considerations different from what is contemplated in the section were stated. The contents of this letter will be considered later on in this judgment when dealing with the pertinent provisions of the Act. For the moment let me summarise the submissions made by counsel for the respondents.</p> <p>  </p> <p> [15] Mr Narib who argued the appeal on behalf of the respondents, contends that the appellant was well aware that the respondents were invoking s 122 of the Act in support of the ‘moratorium’. Counsel points out that the appellant was a party to litigation with the respondents in another matter<a class="sdendnoteanc" href="#sdendnote3sym" name="sdendnote3anc" id="sdendnote3anc"><sup>3</sup></a> in which it was pertinently advised at the time the present proceedings were instituted in the High Court that the respondents were relying on a moratorium issued in terms of s 122. Reasons for the moratorium were also allegedly availed to the appellant. Notwithstanding being so informed, the appellant did not bring a direct challenge to the Minister's promulgation of the notice. Counsel contends that even though the proceedings in the High Court were in the nature of a collateral challenge, they were in substance a direct challenge to the validity or lawfulness of the notice. Relying on the dictum of the South African Supreme Court of Appeal in Kouga Municipality v Bellingan 2012 (2) SA 95 (SCA) at para 12, counsel argues that there is a difference between a direct challenge and a collateral challenge. In respect of a collateral challenge, the court has no discretion but to allow the raising of that defence. The appellant chose this route to invite the respondents to invoke the notice so that it could then challenge it collaterally. This the appellant allegedly did, because in those circumstances, the court could not exercise its discretion against the appellant as it would in the case of a direct challenge.</p> <p>  </p> <p> [16] Counsel for the respondents continues to argue that in the case of a direct challenge, a court has discretion to refuse the remedy because the remedy asked for by the appellant is in the form of a mandamus coupled with a declaratory order which remains a discretionary remedy. Counsel contends that without the notice being set aside, the appellant cannot submit applications for the grant of licences in respect of any mineral or group of minerals specified in the notice. Counsel submits that the remedy sought by the appellant is not the right remedy as it would be meaningless for the court to exercise its discretion to grant the appellant the relief sought only for it to be faced with the notice. Counsel contends furthermore that the notice cannot be set aside without a substantive application directly challenging its validity. Therefore, it serves no purpose to grant the relief claimed while the notice remained in existence, so the argument goes.</p> <p>  </p> <p> <strong>Issues for consideration and decision</strong></p> <p>  </p> <p> [17] Two primary issues arise for decision. These are firstly, whether the appellant should be allowed to mount a collateral challenge against the notice and secondly, in the event that the first issue is answered in the negative, whether the first respondent should nevertheless be ordered to accept the EPL applications. The issue of collateral challenge will be dealt with first.</p> <p>  </p> <p> <strong>Collateral challenge</strong></p> <p>  </p> <p> [18] The learned judge in the court below summarised the principles applicable to collateral challenge to administrative decisions. He also correctly recognised that it is a fundamental principle of the ultra vires doctrine and of the rule of law that it is for the public administration to justify its acts with reference to a statutory power or authority wherever the existence of its powers or the validity of the exercise of such power is questioned. This is so because as this court observed in Rally for Democracy and Progress v Electoral Commission of Namibia 2010 (2) NR 487 (SC) at para 23, the rule of law is one of the principles upon which our State is founded. The principle of legality is one of the incidents that flow from the rule of law. It follows then that by virtue of the presumption of regularity, administrative acts - even those that may later be found to have been invalid - attract legal consequences until they are set aside or avoided. <a class="sdendnoteanc" href="#sdendnote4sym" name="sdendnote4anc" id="sdendnote4anc"><sup>4</sup></a> The High Court then held that unless the notice was set aside by a competent court in proceedings for judicial review, it existed in fact and had legal consequences that could not simply be ignored by the officials to whom the EPL applications were sought to be submitted.</p> <p>  </p> <p> [19] In the Rally for Democracy and Progress matter at paras 68-69, this Court distilled from case law and academic writing the principles relating to a collateral challenge to the validity of an administrative decision which may be summarised as follows:</p> <p>  </p> <p> (a) A collateral challenge may only be used if the right remedy is sought by the right person in the right proceedings;</p> <p>  </p> <p> (b) Generally speaking and in an instance where an individual is required by an administrative authority to do or to refrain from doing a particular thing, if he or she doubts the lawfulness of the administrative act in question, the individual may choose to treat it as void and await developments. Enforcement proceedings will have to be brought by the administrative authority involved, and the individual will be able to raise the voidness of the administrative act in question as a defence.</p> <p>  </p> <p> (c) It will generally avail a person to mount a collateral challenge to the validity of an administrative act where he or she is threatened by a public authority with coercive action, precisely because the legal force of the coercive action will most often depend upon the legal validity of the administrative act in question.</p> <p>  </p> <p> (d) Collateral challenges may not be allowed where evidence is needed to substantiate the claim, or where the decision maker is not a party to the proceedings, or where the claimant has not suffered any direct prejudice as a result of the alleged invalidity.</p> <p>  </p> <p> (e) A collateral challenge bears on a procedural decision.</p> <p>  </p> <p> [20] As a general principle, a collateral challenge to an administrative act or decision occurs when the act or decision is challenged in proceedings whose primary object is not the setting aside or modification of that act or decision. The general thread that runs through the case law is that a collateral challenge may be allowed where an element of coercion exists:<a class="sdendnoteanc" href="#sdendnote5sym" name="sdendnote5anc" id="sdendnote5anc"><sup>5</sup></a> a typical example is where the subject is threatened with coercive action by a public authority into doing something or refraining from doing something and the subject challenges the administrative act in question 'precisely because the legal force of the coercive action will most often depend upon the legal validity of the administrative act in question'.<a class="sdendnoteanc" href="#sdendnote6sym" name="sdendnote6anc" id="sdendnote6anc"><sup>6</sup></a> It must be the right remedy sought by the right person in the right proceedings.<a class="sdendnoteanc" href="#sdendnote7sym" name="sdendnote7anc" id="sdendnote7anc"><sup>7</sup></a></p> <p>  </p> <p> [21] Applying these principles to the facts of the appeal, it has become necessary to consider and decide whether the appellant was in fact coerced into doing or refraining from doing something by the decision of the respondents declining to accept the EPL applications. The term 'coercion' includes both direct and indirect coercion. A form of compulsion must exist to prevent a person from exercising their free will to do or to refrain from doing something. This Court in Namibian Broadcasting Corporation v Kruger and Others 2009 (1) NR 196 (SC) at para 25 accepted the definition in The Collins English Dictionary Complete and Unabridged 8 ed where the word 'coercion' was used along with terms such as ‘compulsion by use of force or threat' and 'constraint’.<a class="sdendnoteanc" href="#sdendnote8sym" name="sdendnote8anc" id="sdendnote8anc"><sup>8</sup></a> The Concise Oxford English Dictionary 10 ed defines ‘coerce’ as: to ‘persuade (an unwilling person) to do something by using force or threats’. This can be distinguished from persuasion or consideration, in the sense that a person is no longer persuaded when he is influenced by another by threat of taking away something he or she possesses or preventing him or her from obtaining an advantage he or she would otherwise have obtained. <a class="sdendnoteanc" href="#sdendnote9sym" name="sdendnote9anc" id="sdendnote9anc"><sup>9</sup></a>This distinction between coercion and persuasion was recognised in Kaulinge v Minister of Health and Social Services 2006 (1) NR 377 (HC) at 386.</p> <p>  </p> <p> [22] Mr Tötemeyer contends that the appellant was in effect coerced by the notice into not applying for the mineral licences. I am unable to agree that in the circumstances of this case the appellant was in the event coerced by the notice into not submitting the application. I respectfully agree with the learned judge in the court below that the notice was not sought in the proceedings before that court to be applied coercively by the public authority or to provide the foundation for coercive action against the appellant. I respectfully also agree with him that this case is an instance where collateral challenge to an administrative act is not available to the appellant since it is not the right remedy in the right proceedings. In the absence of a direct challenge to have the notice set aside and my finding that this is not an instance where a coercive element was present, it has become unnecessary to decide the argument that s 122(1) does not permit the Minister to reserve land from prospecting or mining operations in respect of the whole country.</p> <p>  </p> <p>  </p> <p> [23] From what has been stated herein before, I must not be understood to say that the validity of an administrative act can only be directly challenged in proceedings for judicial review and may not be challenged collaterally in proceedings other than those in which resistance is raised to coercive administrative conduct based on an invalid administrative act. This possible broader scope of raising a collateral challenge was not an issue before us and was neither advanced in the affidavits nor argued by counsel. It will have to stand over for adjudication at an appropriate time where the challenge is made by 'the right person in the right proceedings'. It remains then to consider and decide the question whether the Minister should be directed to receive the EPL applications notwithstanding the existence of the notice.</p> <p>  </p> <p> <strong>Should the respondents be compelled to receive the EPL applications?</strong></p> <p>  </p> <p> [24] This issue requires a consideration of certain key sections of the Act. These include ss 47; 69(2)(f); 122; and 125. It is necessary to set out these provisions in full to have a better appreciation of the conclusions that follow.</p> <p>  </p> <p> [25] Section 47 deals with, amongst others, applications for mineral licences or renewal or transfer thereof and provides as follows:</p> <p>  </p> <p> '(1) Subject to the provisions of this Act, an application for -</p> <p>  </p> <p> (a) a mineral licence or the renewal thereof;</p> <p>  </p> <p> (b) the amendment of a mineral licence; or</p> <p>  </p> <p> (c) the approval of the Minister for the transfer of a mineral licence, or the grant, cession or assignment of any interest in any mineral licence, or to be joined as a joint holder of a mineral licence or such interest,</p> <p>  </p> <p> shall be made to the Minister in such form as may be determined in writing by the Commissioner and shall be accompanied by such application fee and such licence fee as may be payable in respect of the licence period or first licence period, as the case may be, of such licence as may be determined under section 123.</p> <p>  </p> <p> (2) Subject to the provisions of this Act, the Minister -</p> <p>  </p> <p> (a) may grant on such terms and conditions as may be determined in writing by him or her, or refuse to grant, an application referred to in subsection (1); or</p> <p>  </p> <p> (b) shall grant an application for the transfer of a mineral licence referred to in paragraph (c) of subsection (1) where such mineral licence is to be transferred from a company which is the holder of such mineral licence to a company which is controlling, controlled by or under common control with such holder, if the Minister is on reasonable grounds satisfied that such holder is not contravening or failing to comply with the terms and conditions of such licence or any other mineral licence held by it or any provision of this Act.</p> <p>  </p> <p> (3) The provisions of section 39(6), (7) and (8) shall apply mutatis mutandis in relation to the transfer of a mineral licence or the granting, cession or assignment of any interest in a mineral licence or the joinder of a person as a joint holder of such mineral licence or interest.'</p> <p>  </p> <p> It is not in dispute that an exclusive prospecting licence is a mineral licence as that term is defined in s 1 of the Act.</p> <p>  </p> <p> [26] Section 69(2) states:</p> <p> '(1) …</p> <p>  </p> <p> (2) Notwithstanding the provisions of subsection (1), the Minister shall not grant an application by any person for an exclusive prospecting licence –</p> <p>  </p> <p> (a) . . .</p> <p> (b) . . .</p> <p> (c) . . .</p> <p> (d) . . .</p> <p> (e) . . .</p> <p>  </p> <p> (f) in respect of any area of land to which an exclusive prospecting licence or a mineral deposit retention licence relates in relation to a mineral or group of minerals to which such exclusive prospecting licence or such mineral deposit retention licence relates;'</p> <p>  </p> <p> [27] Section 122 is pivotal to this appeal and it provides in full as follows:</p> <p>  </p> <p> (1) Subject to the provisions of this section, the Minister may at any time by notice in the Gazette, if he or she deems it necessary or expedient in the national interest, declare that no person other than the holder of a reconnaissance licence shall, notwithstanding anything to the contrary contained in this Act or any other law, but subject to any right conferred upon the holder of any mining claim, exclusive prospecting licence, mineral deposit retention licence or mining licence by this Act before the date of such notice and which exists on the date immediately before the date of such notice, carry on any prospecting operations or mining operations in, on or under any land or area described by the Minister in such notice.</p> <p>  </p> <p> (2) The Minister may in any notice referred to in subsection (1) or by like notice –</p> <p>  </p> <p>  </p> <p> (a) if he or she deems it necessary or expedient in the interests of the development of the mineral resources of Namibia or for the better exercise of control over minerals in Namibia, invite applications in respect of the whole or any part of the land or area referred to in subsection (1) for any licence in respect of any mineral or group of minerals specified in such notice for consideration on or after a date so specified;</p> <p>  </p> <p> (c) if he or she deems it necessary or expedient for the protection of the environment or the natural resources of Namibia or the prevention of the pollution of such environment or damage to the natural resources, declare that any prospecting operations or mining operations may be carried on in, on or under any such land or area by any holder of a non-exclusive prospecting licence, mining claim, exclusive prospecting licence, mineral deposit retention licence or mining licence only with the special permission of the Minister and subject to such terms and conditions as may be determined by the Minister.</p> <p>  </p> <p> (3) An application for the special permission referred to in subsection (2)(b) shall be made to the Minister in such form as may be determined by the Minister and shall be accompanied by such application fee, if any, as may be determined under section 123, together with such documents and information as may be required by the Minister.</p> <p>  </p> <p> (4) Any person who contravenes or fails to comply with a notice issued under subsection (1) shall be guilty of an offence and on conviction liable to a fine not exceeding R50 000 or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment. (Emphasis supplied.)</p> <p>  </p> <p> [28] Section 125 makes provision for the order in which applications, made in terms of the Act, are to be considered and states as follows:</p> <p>  </p> <p> 'All applications made in terms of any provision of this Act and received in the office of the Commissioner, shall be considered by the Minister or the Commissioner, as the case may be, in the same order as such applications have been so made and received: Provided that all applications so received on the same date shall be deemed to have been received simultaneously.' (Emphasis added.)</p> <p>  </p> <p> [29] It is common cause that the appellant had lodged its EPL applications in accordance with the provisions of the Act and complied with all specifications determined by the Mining Commissioner in terms of s 47. The real question is whether the Mining Commissioner or the Minister was authorised to receive EPL applications while the notice remained in existence. As already noted, s 122(2)(a) provides that when the Minister issues a notice reserving land from exploration operations or mining operations, he or she may invite applications for licences in any mineral group or group of minerals specified in such notice. Does this then mean that s 122 overrides s 47 to the extent that the Minister is not authorised to accept applications once a notice issued in terms of s 122(1) is in place, unless the Minister has invited applications in the notice or 'like notice' as contemplated in s 122(2)(a).</p> <p>  </p> <p> [30] This point was not initially fully argued by counsel. After the court reserved judgment, it issued a directive calling on the parties to file supplementary heads of argument on two questions firstly, whether s 122(2) overrides s 47 to the extent that the Minister is precluded from accepting applications once a notice issued pursuant to s 122(1) is in place, unless the Minister invites applications as contemplated in s 122(2)(a). Secondly, the court invited counsel to present argument as to the interpretation to be given to s 125 in the event that the answer to the first question above is in the affirmative. The court is indebted to counsel on both sides for providing it with useful arguments, which I will endeavour to summarise starting with submissions made on behalf of the appellant.</p> <p>  </p> <p> [31] Counsel for the appellant's principal argument in this regard is that the text of s 122 does not empower the Minister to issue a notice that would curtail the rights of parties to submit applications under s 47. Moreover, so counsel contends, s 122 read together with other provisions of the Act should be interpreted in a manner that does not interfere with the constitutional rights of the appellant or other prospective applicants to apply for mineral licences under the Act. Given this consideration, counsel argues that there can be no scope for introducing an implied power to refuse to accept 'or consider' applications lodged under s 47. It is furthermore contended that s 122 should be interpreted restrictively and 'contextually' to avoid interference with existing rights. Even if s 122 impliedly authorises the Minister, in addition to prohibiting prospecting or mining operations in an area withdrawn, to refuse to accept or consider applications, the notice does not contain a notification or even an intimation that the Minister intended excising such power. Thus, even if such power had existed, it has not been exercised at all.</p> <p>  </p> <p> [32] Relying on a decision of the South African Constitutional Court in Pharmaceutical Manufacturers of SA: In re Ex parte President of RSA 2000 (2) SA 674 (CC) at para 39, counsel submits that administrative action such as the notice should be clear, ascertainable in advance and predictable and not retrospective in operation. Counsel argues that in interpreting the provisions of the Act, due regard should be had to the purpose and scheme of the Act.</p> <p>  </p> <p> [33] Counsel contends that an appropriately restrictive statutory interpretation should not restrict the right of the appellant to submit an application under s 47. Should the notice not be held to be invalid, then the Minister should nevertheless be obliged to consider the appellant's application that has been received by the Mining Commissioner once the notice is no longer in force.</p> <p>  </p> <p> [34] Mr Narib on the other hand urges for a completely different approach. He argues that the power of the Minister to impose restrictions on prospecting operations or mining operations on any land or area is limited only by the terms of s 122 of the Act. This interpretation of s 122(1), according to counsel, is correct because the section starts with the words 'subject to the provisions of this section' which should be read with the phrase 'notwithstanding anything to the contrary contained in the Act or any other law' that appears later in the section. Counsel submits that the words 'subject to' are used in a statutory context to establish which provision is dominant and which subservient. These two phrases, according to counsel, signify that no other provision in the Act may be read to curtail the power conferred on the Minister to reserve land from prospecting operations or mining operations by s 122 of the Act.</p> <p>  </p> <p> [35] Moreover, so counsel contends, s 47 is 'subject to the provisions of this Act', which makes it subservient to any provision in the Act that is in conflict with it. The 'notwithstanding anything to the contrary contained in this Act or any other law' clause in s 122(1) makes that section dominant over s 47 to the extent that there is a conflict between the two provisions. Once the Minister has made a declaration under s 122(1), he may receive applications for mineral licences only if he has invited applications in terms of s 122(2)(a). Unless the Minister invites applications in terms of that subsection, so counsel contends, no application for any licence in respect of any mineral or group of minerals in the land or area specified in the notice may be made for consideration while the notice is in place. Once the notice is lifted or amended, applications may be made in the normal course.</p> <p>  </p> <p> [36] As to the order of priority of applications provided for in s 125, counsel for respondents contends that such order is not necessarily in respect of different types of applications made in terms of the Act. He points to the many different types of applications that may be made in the Act, some of which are required to be considered by the Minister whilst others are considered by the Mining Commissioner. The Act also contemplates that some applications have to be considered outside the order of priority. Thus, the order of priority is applicable only when it is relevant or will have the effect of rendering later applications redundant, so the argument developed.</p> <p>  </p> <p> [37] Counsel for respondents argues furthermore that s 122(2)(a) does not provide for the procedure to be followed when applications pursuant to that section are made. Counsel contends that the procedure set out in s 122(3) is restricted to the provisions of s 122(2)(b), when the Minister has, on account of concerns relating to the protection of the environment or the prevention of damage to the natural resources, imposed a requirement of special permission on which terms and conditions may be imposed by the Minister.</p> <p>  </p> <p> [38] Counsel for respondents contends that the notice was issued for reasons that are in the national interest as may be gleaned from the letter the first respondent wrote to the Minister of Justice and Attorney-General (at the time when the two portfolios were combined) on 6 September 2006. This letter sets out the Minister's reasons for issuing the notice. It reads as follows:</p> <p>  </p> <p> 'As you may be aware, Nuclear Fuel Minerals (and particularly uranium) are strategic resources both for energy production and nuclear warheads. Due to the demand and supply situation for uranium in the world and combined with our liberal legislation regarding application for mineral licences, my office has been overwhelmed with applications for exploration of nuclear fuel minerals.</p> <p>  </p> <p> It has now become imperative that the Government must adjust its policy and legislative framework towards nuclear fuel minerals applications to my Ministry. I have in fact, already directed that all such applicants must first seek audience with me prior to the applications being accepted by the Office of the Mining Commissioner. My intention is to place a short term moratorium on such applications while I formulate a clear procedure.</p> <p>  </p> <p> Section 122(1) of the Mineral (Prospecting and Mining) Act, 1992 provides for the Minister of Mines and Energy to gazette notices to preserve certain land/areas from prospecting and mining operations. Could you please advise if I can use this section to halt the applications for nuclear fuel minerals until such time that we have devised a clear mechanism to regulate the application and the eventual granting of mineral licences in respect of Nuclear fuel minerals? All applications received prior to the date of change in procedure shall be considered within the existing provisions.</p> <p>  </p> <p> Furthermore . . . [The paragraph concerns a different issue which is not relevant to the present proceedings].</p> <p>  </p> <p> Given the above and assuming that such a move shall not adversely affect our currently favourable investment portfolio, I kindly ask for your advice on how I might go about the two issues without exposing my Ministry and Government to legal challenges.</p> <p>  </p> <p> As usual, I count on your kind and prompt assistance.</p> <p>  </p> <p> <strong>Yours truly</strong></p> <p>  </p> <p> <strong>ERKKI NGHIMTINA (MP)</strong></p> <p>  </p> <p> <strong>MINISTER'</strong></p> <p>  </p> <p> [39] As previously observed, s 122(1) confers on the Minister the power to declare that no person shall carry on any prospecting operations or mining operations in, or under any land or area described in such notice. Such declaration is made 'notwithstanding anything to the contrary contained in this Act or any other law'. A holder of a reconnaissance licence is excluded from the declaration and rights conferred on the holders of any mining claim, exclusive prospecting licence, mineral deposit retention licence or mining licence before the date of the notice are also not affected by the notice. The section provides further that the Minister may issue the notice reserving land from prospecting or mining operations if he or she 'deems it necessary or expedient', which means that the Minister has discretion whether or not to make such declaration. It is evident from the subsection, however, that such discretion has to be exercised in the public interest or in the language of the section, in the national interest.</p> <p>  </p> <p> [40] It is apparent from the content of the letter quoted above that the Minister took due cognizance of the strategic use of nuclear fuel minerals (particularly uranium) in energy production and nuclear warheads. He was concerned about the proliferation of licence applications for nuclear fuel minerals which he attributed to the 'demand and supply situation for uranium in the world' combined with this country's liberal legislation regarding applications for mineral licences. In response to the overwhelming number of the applications being lodged with his office at the time, the Minister resolved to place a moratorium on such applications to allow Government some time to review its legislative and policy framework in respect of applications for nuclear fuel minerals.</p> <p>  </p> <p> [41] The Minister was uncertain as to how he could impose a moratorium lawfully and without adversely affecting the country's 'favourable investment policy'. He thus sought advice from the Attorney-General. As the functionary entrusted with the responsibility of exercising control over the country's minerals on behalf of the people of Namibia, the Minister was entitled to consider such weighty issues. He bore the ultimate administrative and political responsibility of ensuring that there was a proper policy and legislative framework in place to deal effectively with the increase in applications for nuclear minerals and to ensure that the exploitation of these strategic resources be managed optimally to the benefit of the country and its people. Such considerations are self-evidently in the national interest.</p> <p>  </p> <p> [42] I turn now to the consideration of the issue whether or not the respondents should be ordered to receive the EPL applications. Neither s 122 nor the notice itself explicitly prohibits the receipt of EPL applications during any period of prohibition on prospecting or mining operations. However, as already noted, s 122(1) commences with the words ‘subject to the provisions of this section’ and then subsection (2)(a) confers on the Minister the power to ‘invite applications' (if he or she deems it necessary or expedient in the interest of the development of the mineral resources of Namibia or the better exercise of control over minerals in Namibia) for any licence in respect of any mineral or group of minerals specified in the notice 'for consideration on or after a date so specified'. Such applications may only be made in respect of the whole or any part of the land or area where any prospecting operations or mining operations are proscribed in terms of s 122(1).</p> <p>  </p> <p> [43] As was observed in S v Marwane 1982 (3) SA 717 (AD) at 747H the purpose of the phrase 'subject to' is ordinarily:</p> <p>  </p> <p> '...to establish what is dominant and what is subordinate or subservient; that to which a provision is "subject", is dominant - in case of conflict it prevails over that which is subject to it. Certainly, in the field of legislation, the phrase has this clear and accepted connotation. When the legislator wishes to convey that that which is now being enacted is not to prevail in circumstances where it conflicts, or is inconsistent or incompatible, with a specified other enactment, it very frequently, if not almost invariably, qualifies such enactment by the method of declaring it to be "subject to" the other specified one.'</p> <p>  </p> <p> [44] As already noted, the provisions of s 47 are 'subject to the provisions of this Act'. Section 122 is, of course, such a provision. Section 122 thus overrides the provisions of s 47 both because of the use of the phrase 'subject to the provisions of this Act' in both ss 47 and 122(1) as well as the employment of the words 'notwithstanding anything to the contrary contained in this Act' in s 122(1). There appears to be a conflict between s 122 and s 47 to the extent that s 47 provides that an application for a mineral licence must be made to the Minister and s 122(2)(a), which says that where a notice prohibiting prospecting operations or mining operations is in place, an application for a mineral licence in a mineral or group of minerals specified in the notice may be made on invitation by the Minister. Section 122(1) is the dominant provision since the phrase ‘notwithstanding anything to the contrary contained in this Act or any other law’ prevails. It seems to me therefore that where there is a s 122 notice in place, an application for a mineral licence may be made and received only once the Minister has invited applications in terms of s 122(2)(a). If the legislature had intended that applications be received in terms of s 47 during the period the prohibition pursuant to s 122 is operative, in my view it would not have been necessary to empower the Minister to invite applications after the declaration contemplated in s 122(1) had been made. The use of the word 'invite' suggests that interested parties who could not otherwise have submitted applications may now lodge applications. On this understanding, the right to lodge applications under s 47 lapses, once a notice has been issued in terms of s 122.</p> <p>  </p> <p> [45] Accordingly, s 122 regulates an exception to the application procedures set out in the Act and provides for a period during which the ordinary rules regulating applications for, consideration and grant of mineral licences do not apply. For these reasons, I am of the view that the intention of the legislature in enacting s 122 (2)(a) was to enable the Minister to determine the time when applications may be made for mining licences when a notice issued in terms of s 122 is in operation, hence the use of the phrase ‘invite applications’ in s 122(2)(a). During this period, the priority of applications ordinarily regulated by s 125 would not operate, no matter how important that system of priority may be for the mining industry as counsel for the appellant argued. In my view, the effect of the notice is therefore to preclude the receipt of applications for licences in respect of a mineral or group of minerals affected by the prohibition as long as the restriction is in place unless the prohibition is accompanied by an invitation to make applications for licences in respect of the affected minerals and in respect of the land or area affected by the notice as contemplated under s 122(2)(a).</p> <p>  </p> <p> [46] In the view I take of the matter, quite apart from the basis upon which relief was refused in the High Court and with which view I respectfully agree, there is yet a stronger reason why the Minister cannot be directed to receive the EPL applications while the notice remains in existence. This is the effect of the pertinent provisions of the Act as described above. I may nevertheless add in passing that it appears from the letter the Minister has written to the Minister of Justice and Attorney-General that the intention on the part of the Minister was to impose a temporary prohibition on prospecting operations and mining operations in respect of the nuclear fuel group of minerals. This is also evident from the notice itself in that such a prohibition is made 'until further notice'.</p> <p>  </p> <p> [47] In the result, it has been found in this judgment that in the absence of a direct challenge to the validity of the notice, such notice exists in fact and has legal consequences that may not be overlooked. Moreover on a proper construction of the relevant provisions of the Act, the respondents should not be ordered to receive the appellant's EPL applications during the period that the notice is in existence.</p> <p>  </p> <p> [48] One last issue remains to be decided. As mentioned above, counsel for the appellant argued that in construing the provisions of s 122 of the Act, the Court should bear in mind the constitutional rights of the appellant as entrenched in Art 21(1)(j) of the Constitution. That provision entrenches the right of all persons 'to practise any profession, or carry on any occupation, trade or business'. This Court has noted on several occasions that this right does not 'imply that persons may carry on their trades or businesses free from regulation'. (See, for example, Trustco Insurance Ltd t/a Legal Shield, Namibia and Others v Deeds Registries Regulation Board 2011 (2) NR 726 at para 25; Africa Personnel Services (Pty) Ltd v Government of the Republic of Namibia and Others 2009 (2) NR 596 (SC) at para 97.) This Court has also held that the regulation of the carrying on of a profession, trade or business must be rational, and not unduly invasive of the rights of the persons concerned. (Trustco Insurance Ltd t/a Legal Shield, Namibia at para 26; Kauesa v Minister of Home Affairs and Others 1995 NR 175 (SC) at 185H-I.</p> <p>  </p> <p> [49] Mining is a business that par excellence requires regulation by government to protect a range of interests, including the environment and the public interest. Given that the appellant did not squarely challenge the validity of the issue of the notice in this case, it cannot complain that the respondent has not fully explained its reasons for issuing the notice. Even so, it is clear from the considerations set out in the Minister’s letter (see para [38] above) that he considered it necessary to issue the notice in the public interest given the proliferation of applications for licences in respect of minerals in the nuclear energy group, a group of minerals of special strategic importance. In my view it cannot be said that the interpretation of s 122 adopted in this judgment (bearing in mind the legitimacy of the regulation of the mining industry), disregards appellant’s constitutional right provided in Article 21(1)(j). As set out above, that right is not absolute, but is subject to rational regulation. Moreover, it was open to appellant to challenge the issue of the notice on constitutional grounds, but that appellant chose not to do. Accordingly, this Court is not persuaded that appellant has established that the interpretation of s 122 adopted in this judgment is in conflict with its constitutional rights.</p> <p>  </p> <p> [50] For all the above reasons, the appeal ought to be dismissed and I would accordingly make the following order:</p> <p>  </p> <p> 1. The application for condonation is granted and the appeal is reinstated.</p> <p>  </p> <