5.
Directing that the order in terms of prayer 2.1; 2.2; 2.3 and 2.4 shall have immediate effect, pending the outcome of the finalization
of the review proceedings.”
[5]
The second notice of motion sought the following relief:
“1.
Reviewing and setting aside the purported decision of the First and Second Respondents to adopt
a new constitution and remove or dismiss the Applicants.
2.
Directing the First Respondent in so far as this may be necessary, to reinstate the Applicants'
as traditional councilors of the Ovambanderu Community. (sic)
3.
Directing the First and Second Respondent to pay costs of this review application;
4.
Granting such further and/or alternative relief to the Applicants as the above Honourable Court may deem fit.”
[6]
The background to the dispute between the parties is that for a number of years the Ovambanderu
Community had been in the process of drafting a constitution for themselves. After several drafts of the constitution had been prepared
and considered, at a workshop of the leadership of the community held on 18 - 19 June 2006 it was decided to reconstitute the constitution
drafting committee to finalize the process and come up with a final draft for endorsement and adoption by the community at a Community
General Assembly, eventually scheduled for 1 - 2 October 2006. The dispute arose from the adoption on 1 October 2006 of the final
draft which embodied certain changes proposed by the Paramount Chief of the community, second appellant, and subsequent action taken
against the respondents, by the appellants.
[7]
The matter was first heard by Hoff J on 8 May 2005, whereupon the Court made the following order:
"1.
That the First and Second Respondents agree to reinstate the First and Eleventh Applicants
with immediate effect as traditional councilors of the First Respondent in terms of paragraph 2.1 of the Notice of Motion pending
the outcome of the presently pending review proceedings and/or negotiations.
2.
That the aforesaid review application and all other relief sought by First to Eleventh Applicants
under case number (P) A 114/2006 stand over for a period of two months from date hereof pending the outcome of the aforesaid negotiations.
3.
That the costs of the urgent part of the application instituted under case number (P) A 114/2006 stand over”.
[8]
The agreement referred to in this order came as a result of appellants being advised that the removal
of respondents as traditional councilors of the community was not in accordance with the requirements of Article 18 of the Namibian
Constitution. The tender was made in appellants’ answering affidavit served on respondents on 19th December 2006.
[9]
The record “of the proceedings and decisions, sought to be corrected or set aside” was
requested and supplied. But on receipt thereof respondents did not, in terms of Rule 53(4), amend, add to or vary the terms of their
Notice of Motion or supplement their supporting affidavit.
[10]
The second appellant died on 16 January 2008. Before his death second appellant had signed a power of
attorney authorizing his legal representatives to prosecute the appeal in the Supreme Court. In this he described his capacity as
follows:
“I, the undersigned PARAMOUNT CHIEF MUNJUKU II NGUVAUVA in my personal capacity and in my capacity as a member of the Mbanderu Traditional
Authority do hereby nominate constitute and appoint…”
[11]
On the day of the hearing of this matter, notice on affidavits was served on everybody involved, including
the Registrar, in which appellants’ legal representatives purported to apply for substitution of the late Paramount Chief.
This application was abandoned however, with Mr Smuts for the appellants submitting that no substitution was required; he drew the
analogy of a Minister being sued in his official capacity, and said if the Minister died before the matter was concluded there would
be no need to apply for his substitution. Mr Corbett for the respondents, after taking instructions argued that the late Paramount
Chief had signed the Power of Attorney in his personal capacity and merely as a member of first appellant. Nevertheless he decided
he would argue the merits of the appeal. The papers in this appeal amply show that the late Paramount Chief was sued in his capacity
as leader of his community both in terms of the Traditional Authorities Act (Act 25 of 2000) and under the customary law of the Mbanderu Community.
The hearing then proceeded.
THE TENDER TO REINSTATE RESPONDENTS
[12]
Before passing on to consider the main issues in this matter, I must revert to the issue of costs as
reflected in paragraph 3 of the Court a quo’s order. The Court dealt with this in para [77] of its Judgment. The tender was made in paragraph 114.6 - 114.7 of the answering affidavit
served on 19 December 2006. The answering affidavit ends with a prayer (record vol 3 p 377), which reads in part:
“114.6
In such circumstances first and second respondents hereby tender to reinstate first to eleventh applicants
as Traditional Councillors of the first respondent with immediate effect.
114.7
First and second respondents also tender to pay the portion of the first and eleventh applicant’s (sic) wasted costs of this application occasioned by this tender and relating to this part of the review only on a party and party basis up to
this stage of the proceedings.”
and concluded (at record vol 3 p 384):
“WHEREFORE IT IS RESPECTFULLY PRAYED ON BEHALF OF FIRST AND SECOND RESPONDENTS AND SUBJECT TO THE TENDER AS MADE BY THE RESPONDENT’S
(SIC) HEREIN THAT IT MAY PLEASE THE ABOVE HONOURABLE COURT TO DISMISS THE REMAINDER OF THIS APPLICATION WITH COSTS.”
[13]
In light of the above, Mr Smuts made the following valid submissions in his heads of argument:
“Despite this tender, the review of this decision was dealt with at some length in the judgment of the Court below and the appellants’
tender itself was referred to in the following way at record vol 5 p 805 ? 21 - 25:
‘I think that the applicants have made out a case to be awarded the costs for 8 May 2006. However they cannot succeed in respect of
costs up to 19 December 2006 because it seems to me that the tender was withdrawn because it was not even mentioned by Mr Geier in
submissions so as to confirm it. Indeed he argued that the applicants’ dismissal was lawful. But since I have upheld the applicant’s
review application costs should follow the event.’
The learned Judge in the Court below then proceeded to award costs to the respondents in paragraph 3 of the Order of Court without
further dealing with the question of the tender made by the respondents or explaining what was meant by the second sentence in the
quoted passage.
It is respectfully submitted that the Court below erred in his dealing with the tender made by the respondents. As is clear from the
tender quoted above, it was made in unequivocal terms.
16
The assumption by the Court below that, because it had not been mentioned by erstwhile counsel for the respondents in argument thus led to its withdrawal is not only, with respect, incorrect in law but also on the facts. …..In the appellants’ (then respondents’) heads of argument filed in the Court below, the following was in fact
stated in paragraphs 12 and 13 at record vol 5 at 685 ? 1 - 18:
'Subsequently and as appears from first and second respondents’ answering affidavits the respondents have tendered to reinstate
first to eleventh applicants as Traditional Councillors of the first respondents with immediate effect.
See:
Answering affidavit paras 114.5 - 114.6
The only issue with therefore remains to be decided in this application, is whether or not the adoption of the Mbanderu Constitution
herein is liable to review and whether or not such adoption should therefore be reversed together with its resultant consequences
as well as the nullification of all actions taken under that Constitution to date as claimed by the applicants.'
17
It is respectfully submitted that the Court thus erred in stating that the issue was not referred to by counsel on behalf of the respondents.
But more importantly, any failure on his part to have dealt with this aspect further in oral argument would not, as was found, result
in any withdrawal of the tender unequivocally made by the respondents in the answering papers in the absence of any evidence of the
tender. The fact that extensive argument was provided on this issue on behalf of the applicants in the Court below, would not change the terms of the tender.
Indeed it should rather, with respect, have let to an appropriate order as to costs as to the further argument prepared and delivered
on this issue.
18
It is respectfully submitted that the Court erred in its reasoning in paragraph 77 and in the consequent finding made in paragraph
3 of its order dealing with the question as to costs. The order of the court itself in respect of the underlying issue, embodied
in paragraph 2, at record vol 5 p 906 is not appealed against, given the clear terms of the tender. It is respectfully submitted that the Court below however thus erred
in relation to the tender itself and that the further costs in relation to the review of that decision after 19 December 2006 should have been borne by present respondents.
19
The tender after all was set out in the very terms of the notice of motion. It thus tendered to the applicants in the Court below everything they sought in relation to the decision to remove or dismiss them. The terms of the notice of motion in this regard are embodied in a portion of paragraph 1 and the entire paragraph 2 to be found
at record vol 1 p 5 ? 20 - 26. These terms were followed directly in the terms of the tender.” (My emphasis)
[14]
I entirely agree with Mr Smuts’s submissions on the issue. Besides what Mr Smuts said, it should
be noted that the press statement (Annexure “ETK 20” to respondents’ founding affidavit) refers to respondents
as being relieved of their positions as traditional councilors, and the tender, about which respondents raised no issue, specified
that they were being reinstated as councilors of first appellant.
[15]
I now turn to deal with the review application. In his heads of argument in the Court below, Mr Geier,
the erstwhile Counsel for the appellants, raised the issue “whether or not the adoption of the Mbanderu Constitution herein
is liable to review and whether or not such adoption should therefore be reversed” (his heads para 13, record p 685). The same
question has been debated in submissions before us.
[16]
The Court a quo identified the issues it had to determine in paragraph [17]
of its judgment viz:
“(1)
Whether the purported decision of the 1st and 2nd respondents to adopt a constitution (hereinafter referred to as the so-called 1 October 2005 Constitution”) should be reviewed
and set aside;
(2)
Whether the expulsion of the applicants as Traditional Councillors of 1st respondent should be reviewed and set aside."
[17]
Despite the tender, the Court went on to say:
“Seminal to the first issue is the question whether it was fair and reasonable for the 1st and 2nd respondents to remove the applicants from their traditional, as apposed to statutory, positions as traditional leaders, i.e. as Senior Chief (in respect of the 1st applicant) and chiefs (in respect of the others) or suchlike positions. I, therefore, respectfully do not agree with Mr. Geier, counsel
for the 1st and 2nd respondents, that the applicants have not prayed for reinstatement in any traditional, as opposed to statutory, positions they might
have held prior to the “adoption” of the so-called 1 October 2005 constitution”
[18]
I will say more about this later.
[19]
Both Counsel in this appeal have made detailed submissions on the issue whether the adoption of a constitution
by a traditional community is an administrative action, and therefore subject to review by a Court. They cited a number of cases
and authorities in support of their different stand points.
[20]
Mr Smuts submitted that the action of adopting a constitution by a traditional community is a “decision
that does not constitute administrative action capable of being reviewed” and that for that reason alone the review should
not have been granted. He outlined the appellants’ challenge to the decision of the Court a quo in paragraph 21 of his heads as follows”.
“It is submitted that the Court a quo erred in granting the order in paragraph 1 on various bases, each of which is fatal. In the first instance, it is submitted, that
this decision does not constitute administrative action capable of being reviewed and that the review should not have been granted
for this reason alone. It is in any event submitted that the review itself was misdirected at the appellants as the decision to adopt
the constitution was by the Mbanderu Community Assembly. It is further submitted that the Court below in any event erred by failing to take into account that the respondent had failed to make out review grounds in their founding affidavits for this relief and then further erring in certain factual findings in the context of the approach
in motion proceedings to disputed facts.”
[20]
Leaving aside for later consideration the rest of these bases, I deal with the first attack on the decision
of the Court a quo regarding the adoption of the constitution. On this issue Mr Smuts relied on a number of authorities where this question was addressed.
The first is Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transvaal Metropolitan Council and Others 1999(1) SA. 374 (CC). Mr Smuts submitted that in that case at paragraphs 28 - 42 the South African Constitutional Court held-.
“that the Legislative decision making of a deliberative legislative body whose members are elected in respect of such decision taken
by them being influenced by political
considerations for which they are politically accountable to an electorate, do not constitute administrative action for the purpose of constitutional review under the South African Constitution.”
[22]
The other case heavily relied on by Mr Smuts is President of the Republic of South Africa v South African Rugby Football Union 2000(1). SA 1 (CC) (the SARFU case) where at paras 141 - 143, the Constitutional Court said (in the context of a review relating
to the exercise of powers by the President of the Republic of South Africa:
“[141]
In s 33 the adjective ‘administrative’ not ‘executive’ is used to qualify ‘action’.
This suggests that the test for determining whether conduct constitutes ‘administrative action’ is not the question whether the action concerned is performed by a member of the executive arm of government. What matters is not so much the functionary as the function. The question is whether the task itself is administrative or not. It may well be, as contemplated in Fedsure, that some acts of a legislature may constitute ‘administrative action’. Similarly,
judicial officers may, from time to time, carry out administrative tasks. The focus of the enquiry as to whether conduct is ‘administrative action’ is not on the arm of government to which the
relevant actor belongs, but on the nature of the power he or she is exercising.
[142]
As we have seen, one of the constitutional responsibilities of the President and Cabinet Members in the national
sphere (and premiers and members of executive councils in the provincial sphere) is to ensure the implementation of legislation.
This responsibility is an administrative one, which is justiciable, and will ordinarily constitute ‘administrative action’ within the meaning of s 33. Cabinet Members have other constitutional responsibilities as well. In particular, they have constitutional responsibilities to develop policy and to initiate legislation. Action taken in carrying out these responsibilities cannot be construed as being administrative action for the purposes of s 33. It follows that some acts of members of the executive, in both the national and provincial spheres of
government will constitute ‘administrative action’ as contemplated by s 33, but not all acts by such members will do so.
[143]
Determining whether an action should be characterized as the implementation of legislation or the formulation
of policy may be difficult. It will, as we have said above, depend primarily upon the nature of the power. A series of considerations may be relevant to deciding on which side of the line a particular action falls. The source of the power, though not necessarily decisive, is a relevant factor. So, too, is the nature of the power, its subject-matter, whether it involves the exercise of a public duty and how closely it is related
on the one hand to policy matters, which are not administrative, and on the other to the implementation of legislation, which is. While the subject-matter of a power is not relevant to determine whether constitutional review is appropriate, it is relevant to
determine whether the exercise of the power constitutes administrative action for the purposes of s 33. Difficult boundaries may have to be drawn in deciding what should and what should not be characterized as administrative action for
the purposes of s 33. These will need to be drawn carefully in the light of the provisions of the Constitution and the overall constitutional purpose of
an efficient, equitable and ethical public administration. This can best be done on a case by case basis." (Emphasis is mine)
[23]
Mr Smuts also referred to the following authorities:
(a)
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