Beruflich Dokumente
Kultur Dokumente
SUMMARY
PARKER J et NDAUENDAPO J
2010 June 4
_________________________________________________________________________
Held, a person is not an aggrieved person within the meaning of Article 25 (2) of
the Namibian Constitution entitled to approach the Court for redress for himself
or herself unless such a person is able to establish that a right guaranteed to him
or her by the Constitution has been infringed or such infringement has been
substantial interest in the outcome of a matter, cannot clothe a person with locus
act carried out under such subordinate legislation, as in the present case.
Held, further, that in order to maintain the justiciability of each of the basic
human rights contained in Chapter III of the Namibian Constitution, each such
basic human right is formulated in such a way that the nature, content or extent
of the particular basic human right are categorically expressed in clear and
plenitudinal terms; and so courts are not justified in adding to, varying or
modifying the rights expressly provided by the Constitution without stultifying the
justiciability of those basic human rights. Where, it is the intention of the framers
of the Constitution that the particular basic human right first mentioned shall
first mentioned basic human right, the framers of the Constitution have made
such of their intention clearly known by using such peremptory words as shall
reconciled with no less important doctrine that the Court must not usurp the
legislature in its wisdom and within its constitutional power appointed to act: the
administrative official exceeded its or his or her power in terms of the legislation
Held, further, that the very concept of administrative discretion involves a right to
choose between more than one possible course of action upon which there is
preferred.
7
and
JUDGMENT
PARKER J.:
motion filed with the Court on 11 September 2008, moving the Court to
(1) That the fees prescribed by the first respondent and approved by the
third respondent as contained in Schedules I and II to annexure II of
Regulation 65 of Government Notice No. 180 of 1996 and published
in Government Gazette No. 1343 on 1 July 1996 and as amended by
Regulation 20 together with Schedules 1 and II thereto, as
published in Government Gazette Nr 3155, dated 17 February.
Schedules I and II in Regulation 20 of Notice No. 36 of 2004 and
published in Government Gazette No. 3155 of 17 February 2004
(hereinafter referred to as the amending Schedules) be declared
unconstitutional and null and void as being contrary to the
provisions of Article 21 (1) (j) and/or Article 18 read with Article 22
of the Constitution of the Republic of Namibia.
(2) That the prescribed fees by the first respondent and approved by the
third respondent as contained in Schedules I and II to annexure IV
of Government Gazette No 3824 dated 13 April 2007, promulgated
under section 40 of the Sectional Titles Act, 1971, be declared
unconstitutional and null and void as being contrary to the
provisions of Article 21 (1) (j) and/or Article 18 read with Article 22
of the Constitution of the Republic of Namibia.
(4) That the Court grants such further and/or alternative relief as the
Court deems fit.
[2] The founding affidavit that accompanied the original notice of motion
observation will become apparent in due course. In any case, the same
other legal practitioners who carry out preliminary work connected with
the Schedules.
[3] The all important point must be made at the outset that by the
(1) (j) and the right to administrative justice in terms of Article 18 of the
[4] The 2nd, 3rd, 5th and 6th respondents have moved to reject the
application. An answering affidavit has been filed on behalf of the 2nd, 3rd
and 6th respondents by the 2nd respondent, who is also the chairman and
executive officer of the 1st respondent and another one has been filed on
[5] In its answering affidavit, the 5th respondent has raised a point in
limine, challenging, in the main, the locus standi of the 1st applicant. In
read with Article 18 and Article 21(1) (j), of the Namibian Constitution.
[6] In Jacob Alexander v The Minister of Justice and Others Case No.
[7] Strydom AJA put it succinctly and straight to the point when the
[9] Thus, in casu the 1st applicant must establish that in virtue of the
Regulations and the Schedules which deal with fees and other charges
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approach the Court for the Court to declare that a legislation or any act
person on the basis that a right guaranteed to him or her has been
[10] It follows logically that the question that immediately arises for
the 1st applicant in virtue of the Regulations and the Schedules, keeping in
firm view the fact that the Regulations and the Schedules which the 1st
applicant seeks to impugn deal with fees and other charges chargeable by
1st applicant, its right under Article 21 (1) (j) of the Namibian Constitution
has been infringed because of the tariff of fees prescribed in terms of the
Regulations and the Schedules. And why does the 1st applicant, who is
short-term insurance, claim that the prescribed tariff of fees that concerns
conveyance, as I have said more than once, has infringed his right to carry
entered into an oral agreement in terms of which, the 1st applicant and the
2nd applicant aver, the 2nd applicant agreed to perform conveyance for the
[11] It is common cause that the applicants are unable to carry out the
The 1st applicant and the 2nd applicant, thus, seek the setting aside of the
fees contained in the Schedules to enable the 1st applicant and 2nd
applicant to implement the said agreement. The 1st applicant says that it
provides, among other things, insurance cover under which one of the
duty. According to the 1st applicant and 2nd applicant, the implementation
fees and to more favourable rates at which the product under the said
[12] The 5th respondent contends contrariwise that the 1st applicant has
notice of motion. Mr. Gauntlett SC, counsel for the 5th respondent
interest which has in any event been self-created. And, according to Mr.
Gauntlett, that cannot amount to the 1st applicant having a direct and
[13] Mr. Marcus, counsel for the 1st, 2nd, 3rd, 4th and 6th respondents
the same lines as Mr. Gauntlett. Mr. Marcus also submitted that the
and the only interest that the 1st applicant has in the present matter is an
indirect financial interest. Mr. Marcus argued that the 1st applicant is not
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does not have a legal interest that could be prejudicially affected by the
judgment of this Court and accordingly (the 1st applicant) lacks the
these cases to the Court: United Watch Diamond Co (Pty) Ltd and others v
Disa Hotels Limited and another 1992 (4) SA 409 (C) at 415F-H; Cabinet of
[14] The indirect financial interest which Mr. Gauntlett and Mr. Marcus
previously. In this regard, Mr. Smuts SC, counsel for the 1st applicant and
the 2nd applicant (assisted by Mr. Heathcote), submitted that the 1st
the aforementioned agreement it had entered into with the 2nd respondent
view the 1st applicant is not a conveyancer or a legal practitioner, and the
1st applicant does not claim that the 1st applicants right to carry on
annexing the Schedules. In my view, what the 1st applicant has done in
this matter, with the greatest deference, is that the 1st applicant has hitch-
hiked a ride on the back of the 2nd applicant in the 1st applicants ill-
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applicant has approached the Court. This Court cannot, under any
arising from the aforementioned agreement cannot clothe the 1st applicant
Constitution. Accordingly, I hold that the 1st applicant has not established
that it has locus standi, entitling it to approach the Court in terms of the
notice of motion because the 1st applicant has failed to show that it is an
Constitution. The irrefragable fact that existed when the 1st applicant
launched the instant application was that the 1st applicants right to carry
limine challenging the locus standi of the 1st applicant. The application is
accordingly dismissed with costs to the extent set out in the order below as
the merits that now follows concerns the 2nd applicant only.
17
Schedules.
submission of Mr. Smuts that the application is not about the right to
amended (i.e. the Regulations). And why does Mr. Smuts say that that
says so for the following reasons: the 2nd applicants right to compete on
[18] One must not lose sight of the fact that the basic human rights
basic human rights, each basic human right is formulated in such a way
that the nature, content and extent of the particular enshrined human
right are categorically expressed in clear and plenitudinal terms for all to
calls for certainty of that notion or tenet. It would make utter nonsense of
vary and modify such particular basic human right guaranteed by the
Constitution to suit their own views as to what they think the nature,
content and extent of such basic human right ought to be, and thereby
offshoot (or a corollary, Mr Smuts calls it) of the particular basic human
Court is not entitled to do that. Thus, in its plenitude, Article 21 (1) (j) of
the Namibian Constitution, for example, does not by any stretch of legal
can justify the Court creating any such substantive basic human right in
Chapter III of the Namibian Constitution or can justify the Court creating
any corollary basic human right, which Mr. Smuts, with the greatest
Namibian Constitution.
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associated, i.e. corollary (The Concise Oxford Dictionary, 9th edn.), right,
the particular provision in which that basic human right is provided for
has been crafted in such a way as to make any such allowance expressly
and clearly stated in peremptory terms by the use of such words as shall
clear that the basic human right first mentioned in the formulation is not
exhaustive and that only an aspect of the human right is expressed and
that there are other basic human rights associated with it or supplemental
basic human right, the framers of the Constitution have made such of
provisions. The following vindicates the point being made. Article 21 of the
(c)
(d)
[20] It is, therefore, not insignificant, neither is it aleatory, that the words
shall include, which in my view are purposeful, are found in the very
Article 21 (1) which contains the right to practise any profession now
the following national Bill of Rights and international Bill of Rights where
similar words shall include and derivative words includes and including
are used:
Article 19
(1) Everyone shall have the right to freedom of expression; this
right shall include freedom to seek, receive and impart information
and ideas of all kinds
[My emphasis]
[21] For the aforegoing, I conclude that I do not read the Supreme Court
would the Supreme Court have been entitled to create any such basic
important to signalize the crucial point that Article 21 (1) (j) contains two
main disparate basic human rights, sc. (1) the right to practise any
profession and (2) the right to carry on (2a) any occupation, (2b) trade or
(2c) business; and, a fortiori, one right is not a subsidiary right to the
other; neither are the two main distinct and separable rights
interchangeable. Accordingly, one must not conflate right (1) on the one
hand and rights (2a), (2b), and (2c) on the other and then subject all of
religious Holy Places. To illustrate the point further; X is occupied with the
regular buying of carcass of cow from MEATCO, with cutting the carcass
meat into small pieces, and with frying the pieces of meat and selling the
the Supreme Court was seized with the interpretation and application and
Oxford, Clarendon Press (1995): p. 46) of only the right to carry on any
that judicial function should be seen in only that light. In this connection,
it must be remembered that I have held previously that the 1st applicant
has no locus standing in these proceedings because I have found that the
1st applicant does not allege that his right to carry on its occupation, trade
[22] And what is more; one must not confuse the authorized and,
the nature, content and extent of each basic human right guaranteed by
practise his or her profession in Article 21 (1) (j), are plenitudinal and
exhaustive.
[23] Accordingly, pace Mr. Smuts, Article 21 (1) (j) does not contain or
Therefore, I do not find the cases from South Africa and elsewhere referred
inasmuch as those cases are set up as authority for extending the right to
not lose sight of the fact that what the Constitution seeks to protect is the
practise a profession. (See e.g. Arthur Frederick Uffindel t/a Aloe Hunting
on price, being a basic human right guaranteed by the Bill of Rights under
Instruments, Vol. I and Vol. II, United Nations, New York: 1994.)
under the Namibian Constitution. That is the right on which the 2nd
Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247
South Africa (Pty) Ltd and Another (Treatment Action Campaign and Another
as Amici Curiae 2006 (2) SA 311 (CC); Union Wine Limited v E Snell and Co.
[25] In view of the foregoing reasoning and conclusions, I hold that the
2nd applicant has not established that his right to practise a profession of
conveyance within the meaning of Article 21 (1) (j) has been infringed or
that the 2nd applicants constitutional challenge based on Article 21 (1) (j)
[26] The other constitutional ground upon which the 2nd applicant
Namibian Constitution. I now proceed to consider that attack. Has the 2nd
[27] As respects Article 18, in order for the 2nd applicant to succeed, the
the requirements expressed in Article 18, i.e. (1), (2), (3a) and (3b) (as
indicated in the above quotation for clarity). As I see it, (1), (2), (3a) and
administrative officials must comply with when they act in order for such
It is not just enough for a person to approach the Court and allege simply
and in general terms without more that his or her right guaranteed to
have not been complied with by the act of a named administrative body or
relation to the applicant, the applicant shall be out of court. That is the
and so it is subject to the application of Article 18; and so the only single
applicant allege has not been complied with by the 1st respondent and the
3rd respondent in relation to him when the 1st respondent made the
them? Thus, the only issue that I must now determine is this: What
have not been complied with by the 1st respondent and the 3rd respondent
in relation to him and in which respect the aforementioned acts of the 1st
respondent and the 3rd respondent, respectively, have infringed the 1st
applicants right under Article 18? It appears to me that the 2nd applicant
alleges that in making the Regulations, annexing the Schedules, the 1st
above). Accordingly, the question that arises for decision as respects the
applicants founding affidavit, apart from his attack based on Article 21 (1)
[29] As I understand the 2nd applicants contention in this regard, the 2nd
applicant says the 1st respondent and the 3rd respondent did not act
noting that the 2nd applicants contention is put forth argumentatively that
users, ergo, the 1st respondent and the 3rd respondent must have acted
unreasonably. And why does the 2nd applicant say the ad valorem-based
find much from either the founding affidavit or the written submission of
counsel in which respect the 2nd applicant really contends that the ad
little support in the heads of argument. The only reason that is prominent
to find on the 2nd applicants papers is that, according to the 2nd applicant,
work done.
their behalf Mr. Marcus submitted that the 1st respondent did act
reasonably because its act (or decision) is not one that a reasonable
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understood Mr. Marcus, the 1st respondent exercised its discretion fairly
the rational link between the empowering statute and the imposition of
compulsory tariffs, and further that that tariff achieves further legitimate
government purposes.
LJ stated, The word reasonable has in law the prima facie meaning of
actor called upon to act reasonably, knows or ought to know. And in his
have been grouped into three categories that are not rigidly
compartmentalized: they run into each other and overlap markedly. The
first category is the basis of the decision; that is, if a decision is entirely
reasonable person could have come. The second category is the purpose
of, and motive for, the decision; that is, it is considered unacceptable for an
powers dishonestly. The third category is the effect of the decision; that is,
Namibian Constitution.
evidence presented on the papers, I come to the conclusion that the 2nd
applicant has failed to establish that the act of the 1st respondent and of
following reasons.
factors that the 1st respondent took into account when it made the
Regulations and the Schedules, prescribing the aforesaid tariff of fees and
I have no good reason to reject the 1st respondents evidence that they took
into account those factors before acting; and I do not find any credible
evidence on the papers tending to show that the 1st respondent did not act
in the manner averred. In this regard, I do not see the 1st respondents
statements on the factors they took into account when they made the
carried out an act and it was alleged in a founding affidavit that that act
such official or such body took into account in carrying out the act. In
That is what the 2nd respondent, the chairman and executive officer of the
1st respondent, has done in these proceedings. And more important and
the 2nd applicant claimed that in taking into account those factors the 1st
existed when they made the Regulations, annexing the Schedules (Re
Solicitor supra ibid.). It cannot, therefore, be argued that the act of the 1st
any evidence on the papers tending to prove that the 1st respondent used
their power under the relevant legislation dishonestly. Has it been shown
this regard, the peg on which the 2nd applicant hangs his constitutional
of tariff of fees has no correlation to the time spent on the work and is
tariff of fees, which the 2nd applicant prefers and is enamoured with, is
what the 1st respondent ought to have prescribed. The 2nd applicants
reason for so contending is that the hourly-based rate of tariff of fees can
That being the case, so the 2nd applicant argues, the ad valorem-based rate
of tariff of fees is offensive of s. 10 (1) (c) of the Deeds Registries Act 1937,
under which the said regulation 65 was made, because while the hourly-
Section 10 provides:
emphasize peremptory that any tariff of fees and charges that the 1st
distinct and separable items, and the section does not say the 1st
respondent must without any allowance whatsoever prescribe all the three
(2) the preliminary work required for the purposes of (by other legal
practitioners); and
do not read the language of s. 10 (1) (c) as making it mandatory for the 1st
respondent to prescribe all the three items (i.e. (1), (2) and (3) in my
respondent is ultra vires s. 10 (1) (c) of the said Deeds Registries Act, 1937
evidence on the papers that the ad valorem-based rate of tariff of fees leads
[38] Another important point must be emphasized that the Court is not
entitled to hold that just because the 2nd applicant thinks that the hourly-
based rate of tariff of fees better serves his self-serving purposes than the
latter tariff the 1st respondent acted unreasonably. It is worth noting that
doctrine that the Court must not usurp the discretion of the administrative
Law, 5th edn. (1984): p. 362). As Mr. Gauntlett reminded the Court more
therefore not for this Court to substitute any decision in the place of that
of the 1st respondent but merely, upon the moving of the 2nd applicant, to
decide whether the Deeds Registries Act, 1937 (as amended), particularly
Law of India: A Critical Commentary, 4th edn. (1999): p. 1520, fn. 30.) I will
say administered reasonably and fairly; for, as Levy AJ said in Frank &
[39] Furthermore, in this regard, one must not lose sight of the fact that
choose between more than one possible course of action upon which there
the true and overriding question must always be whether the statutory
power has been exceeded (Wade, Administrative Law, ibid.: p. 365); and I
have held above that in making the Regulations and the Schedules, the 1st
respondent did not exceed their statutory power; neither did the 3rd
cannot be argued that in making the Regulations and the Schedules the 1st
Judges may think that the Regulations and the Schedules go further than
deference, find the views expressed in Vaatz v Law Society of Namibia and
in making the Regulations and the Schedules the 1st respondent did act
[40] For the aforegoing, I come to the inevitable conclusion that the 2nd
applicant has failed to establish that in making the Regulations and the
charges, and in approving them, the 1st respondent and the 3rd
respondent, respectively, did not act fairly and reasonably within the
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the 2nd applicant has failed to establish that Article 18 of the Namibian
find that as respects the Article 18 challenge, too, the interpretation and
in these proceedings.
Deeds Registries Act, 1937 (as amended) and the Regulations and the
application of the right to practise any profession under Article 21 (1) (j)
thereanent to the facts of the present case. By the founding affidavit, the
founding affidavit. And as to the striking out application; the relevant and
preponderant factors, including the law, that have been taken into account
must fail.
(2) The applicants are ordered to pay the costs of this application
________________________
PARKER J
________________________
NDAUENDAPO J
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Adv R Heathcote SC
COUNSEL ON BEHALF OF
THE 5TH RESPONDENT: Adv JJ Gauntlett SC
Adv MW Janisch
COUNSEL ON BEHALF OF
THE 1ST - 4TH and 6TH RESPONDENTS: Mr N Marcus