|CASE NO.: SA 8/99
IN THE SUPREME COURT OF NAMIBIA
In the matter between
THE CHAIRPERSON OF THE IMMIGRATION
SELECTION BOARD APPELLANT
ERNA ELIZABETH FRANK FIRST RESPONDENT
ELIZABETH KHAXAS SECOND RESPONDENT
CORAM: Strydom, C.J.; Teek, A.J.A. et O'Linn, A.J.A.
HEARD ON: 09 - 10/10/2000
DELIVERED ON: 05/03/2001
STRYDOM, C.J.: This is an appeal against orders made by a Judge of the High Court of Namibia whereby -
"(a) The decision of the Immigration Selection Board of 29th July 1997 refusing a permanent residence permit to Erna Elizabeth Frank is reviewed and set aside.
The Immigration Selection Board is directed to authorise the issue to Erna Elizabeth Frank a permanent residence permit within thirty days of date of the order of this Honourable Court.
There is no order as to costs."
By agreement between the parties the appeal was brought directly to this Court in terms of section 18(2)(a)(ii)(aa) of the High Court Act, Act No. 16 of 1990.
Before setting out the background history and facts of the case mention must be made of the fact that the appellant did not file the record of appeal timeously with the result that in terms of Supreme Court Rule 5(5) the appeal is deemed to have lapsed. Application for condonation of this failure was made by the appellant which is opposed by the respondents.
Mr. Oosthuizen, instructed by the Government Attorney, appeared for the appellant and Ms. Conradie, for the Legal Assistance Centre, appeared for the respondents. Neither Counsel appeared for the parties in the Court a quo. Because the merits of the appeal is also of importance for the application of condonation and re-instatement of the appeal, Counsel were allowed to address us simultaneously on both issues.
The background history of this matter is as follows. In the Court below the respondents were the first and second applicants who launched a review application against the appellant, then the respondent, for the relief set out herein before, as well as some alternative relief which is not relevant to the present proceedings. For the sake of convenience I shall refer to the parties as they appeared before us, namely as the appellant and the first and second respondents.
In her founding affidavit the first respondent stated that she was a German national. During 1982, and whilst still a student at the University of Bremen, the first respondent joined the Anti-Apartheid Movement and assisted members of SWAPO as a translator and interpreter at political meetings and rallies. She obtained a Bachelor of Arts degree and a Diploma of Education at the La Trobe University, Melbourne, Australia, during 1976 and 1977 respectively.
Thereafter first respondent moved to Bonn, Germany, where she taught English to development workers and German to Turkish immigrants. In 1982 she started a four year course known as the Erstes Staatsexamen fur Lehramt at the Bremen University. This she completed in 1990. First respondent started working for the Centre for African Studies/Namibia Project during March 1988 at the University of Bremen.
During 1990 first respondent visited Namibia. During 1991 she applied for the first time for a temporary work permit. Since then these employment permits have been renewed regularly. In October 1995 first respondent applied for the first time for a permanent residence permit. During June 1996 she was informed by the Ministry of Home Affairs that this application was unsuccessful.
First respondent re-applied for a permanent residence permit during June 1997. Together with this application a letter was sent by her legal representatives. In this letter the appellant Board was requested to allow first respondent to appear before the Board to answer any queries they may have or to deal with any information which may adversely affect the application or to supplement further information if required by the Board. Attached to this letter were various communications supporting the application of the first respondent. In this regard there were letters inter alia from the Minister of Finance and permanent secretaries of two Ministries.
By letter dated 30 July 1997, the first respondent was again informed that her application for a permanent residence permit had been unsuccessful. No reasons for this decision were given by the appellant.
During the period of her stay in Namibia, first respondent worked as a senior researcher and later as Deputy Director of the Centre for Applied Social Sciences (CASS). Since October 1997, she has worked for CASS as a consultant.
In the letter by her legal representative, which accompanied the 1997 application for permanent residence, the relationship between the first and second respondents was set out. In her founding affidavit first respondent stated that she has had a relationship with the second respondent, Elizabeth Khaxas, since 1990. She pointed out that her sexual orientation was lesbian and that if it was legally possible to marry she and second respondent would have done so. First respondent furthermore set out the extent of her relationship with the second respondent and the latter's son Ricky Martin. Because of certain statements by, inter alia, the President and other members of Government, the first respondent has expressed the fear that her lesbian relationship with the second respondent may have been the reason why her application for a permanent residence permit has been rejected.
First respondent further pointed out that if her relationship with a Namibian citizen was a heterosexual one, she could have married and would have been able to reside in Namibia or apply for citizenship in terms of Article 4(3)(a) of the Namibian Constitution. She said that the appellant did not take this factor into account and therefore violated her right to equality and freedom from discrimination guaranteed by Article 10, her right to privacy guaranteed by Article 13(1) and protection of the family guaranteed by Article 14 of the Constitution.
In conclusion the Court a quo was asked to review the decision of the appellant in terms of the common law and Article 18 of the Constitution on the following grounds:
That there was no evidence, alternatively no reasonable evidence to justify the decision;
That she, in all the circumstances, had a legitimate expectation that she would be informed of all information in possession of the appellant, particularly adverse information, and also that she would be given an opportunity to deal with such information;
That the appellant failed to apply the principles of natural justice, particularly that of audi alteram partem;
That the appellant failed to take into account relevant factors and considerations, such as her long period of residence in Namibia, her long-term relationship with a Namibian citizen and her qualifications, skills and work experience; and
That the appellant failed to give any reasons for its decision.
At this stage mention must be made of the application whereby the second respondent was joined in the proceedings. In her founding affidavit second respondent confirmed the relationship between herself and first respondent. She further stated that the decision by the appellant infringed her constitutional rights guaranteed by Articles 10, 13(1), 14(1) and (3), 21(1)(g) and 21(1)(i).
One Simwanza Simenda acted as chairperson of the appellant Board when the application for a permanent residence permit by the first respondent was considered and rejected.
Regarding the requests made by first respondent through her legal representative to appear in person before the appellant, it was stated by appellant that first respondent's application was complete and fully motivated and that there was therefor no necessity for the appellant to call upon her to appear. The members of appellant also had no specific queries for the first respondent. There was further no specific information before the appellant which adversely affected the application and neither was it necessary to supplement the application with further information.
Regarding the qualifications, skills and experience of the first respondent, the appellant stated that it took these into consideration and came to the conclusion that the University of Namibia had graduates qualified in first respondent's field of expertise and that employment must be found for them. This process is continuing, and more and more Namibians who can perform the work first respondent is involved in are being trained. Moreover, numerous volunteers who serve as inservice trainers and research officers at different levels are coming into Namibia on temporary permits.
Furthermore even if there is at this stage a shortage of persons with the qualifications, skills and experience of the first respondent, the appellant cannot ignore the fact that the labour market is limited and that employment must be found for Namibian citizens who will obtain similar qualifications, skills and experience over the next few years.
Regarding the fact that the first respondent is a lesbian, the appellant denied that this played any role in the decision taken by it. It is stated that the first respondent's sexual preference was considered to be a private matter having no bearing on her application for a permanent residence permit.
The appellant furthermore denied that the first respondent could have a legitimate expectation as alleged by her and further denied that it failed to apply the principles of natural justice and stated that it took into account all information relevant to the first respondent's application. The appellant admitted its failure to give reasons for its decision but denied that it was in law obliged to do so.
Appellant also agreed as to the effect of Article 4(3)(a) of the Constitution and stated that the present relationship of the first respondent with the second respondent was not recognised in law and was also not covered by sec. 26(3)(g) of the Immigration Control Act.
In her reply, first respondent denied that there were sufficient persons with her qualifications, skill and experience in Namibia and pointed out that the record clearly showed that appellant did not rely on any facts or data which could justify such a finding. First respondent also pointed out that the appellant misdirected itself by equating graduates with persons with experience such as herself and stated that a university graduate cannot start training teachers, developing syllabi and textbooks without first gaining practical teaching experience.
This then was the background history and facts put before the Court a quo on basis of which that Court set aside decision of the appellant and ordered it to grant to first respondent a permanent residence permit.
In regard to the application for condonation and re-instatement of the appeal, affidavits were filed by Mr. Taapopi for the appellant and Mr. Asino of the Government Attorney's Office. Mr. Taapopi stated that he was informed that an appeal was duly noted on 22 July 1999. He was waiting to be informed of the date of appeal but was under the impression that the Court roll was full and did not expect the appeal to be argued in the near future. He was then informed that the record of appeal was not filed in terms of the Rules of Court. He said he did not know the procedures required to prosecute an appeal and was unaware that the legal practitioner had not complied therewith.
Mr. Taapopi referred to the complicated constitutional issues involved in the case and the necessity to have an authoritative judgment on the issues which will also serve as a guideline to the appellant in future. He further stated that the appellant recognised the fact that the respondents have a right to prompt adjudication of the matter and stated that the appellant had no intention of delaying the matter for the purpose of frustrating the administration of justice. In order to obviate the potential personal harm occasioned by the late filing of the record, the Immigration Selection Board had renewed first respondent's employment permit for a period of 1 year so that she might earn a living while the Court decided this matter.
Mr. Asino stated that after the appeal was noted he neglected to lodge the record within the period required by the Rules. He humbly apologised and stated that he could offer no excuse for his neglect. He said that he knew that it was his responsibility to assure that all the procedures were followed and all documents were filed timeously and that he had failed to do so. He added however that his dereliction was not intentional.
Mr. Asino further explained that he was alerted to the fact that he failed to lodge a record by the legal practitioner of the respondents. This was by letter dated 9 February 2000. He then met with the respondents' legal practitioner in order to obtain the latter's consent to the late filing. This was refused and he was informed that he should apply for condonation. The legal practitioner however indicated that he would consult first respondent to find out whether she would object to the late filing of the record. Finally, on the 7th March 2000, he was informed by first respondent's legal practitioner that she was not willing to give such consent. He thereupon prepared the record and the application for condonation which were then filed.
In her answering affidavit to the application for condonation by appellant, first respondent informed the Court that no employment permit was issued to her notwithstanding the allegation made in this regard by Mr. Taapopi. She further informed the Court that her employment permit expired at the end of September 1999. Although she had applied for a renewal during September 1999, no employment permit was issued to her. Repeated enquiries addressed to the Ministry of Home Affairs met with no success. During February 2000 she was informed by an employee of the Ministry that her application was now in the hands of the Government Attorney. Since then she has heard nothing further.
Mr. Light, who then represented the respondents, also filed an affidavit in opposition to the application for condonation. He said that when it became apparent that appellant did not take any further steps to prosecute the appeal, he addressed a facsimile dated 9 February 2000 to appellant's legal practitioners. This was sent on 10 February 2000. A copy of the facsimile and confirmation are annexed to the affidavit. Therein reference is made to the relevant Rule of Court and the fact that the appeal was deemed to have been withdrawn. The appellant was called upon to comply with the High Court order and to issue a permanent residence permit within 30 days. Counsel said nothing further happened and on 17 February 2000 he phoned Mr. Asino. The latter confirmed that he had received the fax and wanted to know whether the respondent's would be prepared to not oppose the application for condonation, if they gave the first respondent an employment permit. Light said that he refused and told Mr. Asino that they would have to bring an application and that respondents would then have to consider their position. Mr. Light said that he made a note of this telephone conversation contemporaneously or shortly thereafter. The note is annexed to the affidavit. Mr. Light denied the impression created by Mr. Asino that the latter contacted him or met with him after he had received the facsimile.
Mr. Light further stated that prior to the telephone conversation, he had already discussed the issue with first respondent, who instructed him not to consent to the late filing of the record or to the application for condonation but to hold this over to see whether there was any merit in the application.
On the 7th March 2000 Mr. Light sent a further facsimile to Mr. Asino reiterating his previous request to issue a permanent residence permit to the first respondent. On this occasion there was reaction from Mr. Asino who again wanted them to agree, Mr. Light was not quite sure to what, but Asino was again informed that they would not agree not to oppose the application for condonation.
Mr. Light categorically denied what he termed "(the) extremely vague assertion in paragraph 7 of his affidavit that he met me at some unidentified place on some unspecified date". Mr. Light consequently denied that he indicated to Mr. Asino that he would consult first respondent to see if she would object to the late filing of the record and he denied the allegation by Mr. Asino that he was only informed on 7 March 2000 that first respondent would not consent to such an agreement.
No replying affidavits were filed by the appellant.
The chronological sequence of events concerning the prosecution of this appeal are the following. A written judgment was handed down by the Court a quo on 24 June 1999. Notice of appeal, together with an agreement in terms of section 18(2)(a)(ii)(aa) of Act No. 16 of 1990 to appeal directly to this Court, was filed on 22 July 1999. The record of proceedings was lodged, according to first respondent, on 9 March 2000 and an application for condonation for the late filing of the record and re-instatement of the appeal was filed on 14 March 2000. The appeal was heard on 9 October 2000. The requirement for the lodging of the record is set out in Rule 5(5) of the Rules of this Court, which provides as follows:
"5(5) After an appeal has been noted in a civil case the appellant shall subject to any special directions issued by the Chief Justice -
in all other cases within three months of the date of the judgment or order appealed against or, in cases where leave to appeal is required, within three months after an order granting such leave;
within such further period as may be agreed to in writing by the respondent,
lodge with the registrar four copies of the record of the proceedings in the court appealed from, and deliver such number of copies to the respondent as may be considered necessary …"
Discussing the effect of the non-compliance with AD Rule 5(4) of South Africa, which is in all material respects similar to our rule 5(5), Vivier, J.A., in the case of Court v Standard Bank of S.A. Ltd.; Court v Bester NO and Others, 1995(3) SA 123(AD) at 139 F - I, came to the conclusion that such failure results in the appeal lapsing and that it was necessary to apply for condonation to revive it. This in my opinion is also the effect of a failure to comply with Supreme Court Rule 5(5).
At the latest the record of the proceedings in this matter should have been lodged by 24 September 1999. Instead it was lodged some five and a half months later and that only after the legal representative of the appellant was alerted to the non-compliance with the Rule by the representative of the respondents.
Both counsel referred the Court to the case of Federated Employers Fire and General Insurance Co. Ltd. and Another v McKenzie, 1969(3) SA 360(A) where the following was said by Holmes, J.A. at p.362G - 363 A, namely:
"In considering petitions for condonation under Rule 13, the factors usually weighed by the Court include the degree of non-compliance, the explanation therefore, the importance of the case, the prospects of success, the respondents interest in the finality of his judgment, the convenience of the Court and the avoidance of unnecessary delay in the administration of justice; see Meintjies v H.D. Combrinck (Edms.) Bpk., 1961(1) SA 262 (AD) at p. 264 A - B; Melane v Santam Ins. Co. Ltd., 1962(4) SA 531 (AD); and Kgobane's case, supra. The cogency of any such factor will vary according to the circumstances, including the particular Rule infringed. Thus, a badly prepared record - Rule 5(7) to (10) - involves both the convenience of the Court and the standard of its proceedings in the administration of justice. A belated appeal against a criminal conviction Rule 5(5) - may keenly affect the public interest in the matter of the law's delays. On the other hand the late filing of the record in a civil case more closely concerns the respondent, who is allowed to extend the time under Rule 5(4)(c)."
Mr. Oosthuizen relied strongly on the importance of the case in his bid to get condonation. In this regard he referred to the necessity to have an authoritative interpretation of the Aliens Control Act and more particularly sec. 26 thereof. Counsel also dealt with various Articles of the constitution although in his reply Mr. Oosthuizen submitted that because of a concession made by Mr. Light in the Court a quo the Court could not deal with this issue.
Ms. Conradie, although she conceded that the case was important, submitted that a reading of cases in the Supreme Court of Appeal in South Africa shows a tendency to refuse condonation where there has been a flagrant non-observance of the Rules. She further submitted that no explanation was given by Mr. Asino for his failure to file the record on time. Counsel further referred to the respondents' interest in a final judgment and urged the Court to refuse condonation.
A reading of the cases of the Supreme Court of Appeal shows in my opinion more than a tendency to follow a hard line. These cases show that a flagrant non-observance of the Rules of Court coupled with an unsatisfactory explanation for the non-observance of the Rules and delays more often than not ended in a refusal of condonation. In certain instances the Court declined to consider the merits of a particular case even though it was of the opinion that there was substance in the appeal. (See, inter alia, Moraliswani v Mamili, 1989(4) SA (AD); Rennie v Kamby Farms (Pty) Ltd., 1989(2) SA 124 (A); Ferreira v Ntshingila, 1990(4) SA 271 (AD); Southern Cape Car Rentals cc t/a Budget Rent a Car v Braun, 1998(4) SA 1192 (SCA); Darries v Sheriff, Magistrate's Court, Wynberg, and Another, 1998(3) SA 34 9SCA) and Blumenthal and Another v Thomson NO and Another, 1994(2) SA 118 (AD).
A reading of cases of the High Court of Namibia shows that the situation is not different from that in South Africa and the Court has refused condonation or relief in similar circumstances or issued warnings where there was non-compliance with the Rules. (See S v Wellington, 1991(1) SACR 144; Maia v Total Namibia (Pty) Ltd., 1992(2) SA 352, 1998 NR 303; Swanepoel v Marais and Others, 1992 NR 1; S v Gey van Pittius and Another, 1990 NR 35; Adriaans v McNamara, 1993 NR 188; Xoagub v Shipena, 1993 NR 215; S v Nakapela and Another, 1997 NR 184; Johnston v Indigo Sky Gems (Pty) Ltd., 1997 NR 239; Mutjavikua v Mutual Federal Insurance Co. Ltd., 1998 NR 57 and Meridien Financial Service Pty Ltd. V Ark Trading, 1998 NR 74.)
Although the above Namibian cases deal with the rules of the High Court there was no reason to accept that this Court would apply different principles or would be more accommodating.
Many of the above cases also show that "there is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of this Court". (Saloojee & Another v Minister of Community Development, 1965(2) 135 (AD) at 141 C - D.) See further P.E. Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd., 1980(4) SA 794 (AD).
A legal practitioner who fails to comply with the Rules of Court must give a full and satisfactory explanation for the non-observance of the Rules and any delays that might have occurred. Furthermore a legal practitioner should also as soon as he or she realises that a breach of the Rules has occurred, prepare and file an application for condonation. This presupposes that the legal practitioner knows the rules and would know when non-observance thereof occurred. Lack of knowledge due to ignorance of the Rules and failure to inform him or herself of the provisions of the Rules can hardly serve as an explanation for failure to apply timeously.
In the present instance, I must agree with Ms. Conradie that no explanation was placed before the Court concerning the non-observance of Rule 5. All that the affidavit contains is an admission that the legal practitioner was negligent. This was no news to the Court. In the absence of any explanation it followed that the cause for the failure was neglect on the part of the legal practitioner. But that still did not explain why the legal practitioner neglected to comply with the Rules of Court. In the absence of even an attempt to explain such neglect the only conclusion to which this Court can come, is that after the notice of appeal was filed, the whole matter was allowed to sink into oblivion. Why this was allowed to happen is unknown. There is further no indication in the affidavit as to when the instruction was given for the preparation of the record. In fact the legal practitioner's affidavit does not even inform the Court when the record was lodged. This information only emerged from the first respondent's answering affidavit to the application. What we do know is that the legal practitioner said that after, according to him, he was informed, on 7 March, that the first respondent was not willing to give her consent, the record was prepared and lodged, and only then an application was prepared for condonation. From this the only conclusion that can be drawn is that this only happened after the legal practitioner was alerted to this problem by Mr. Light on 10 February.
There is also no explanation what the cause was of the delay after 10 February and until the record was lodged. Seemingly nothing happened until Mr. Light contacted Mr. Asino telephonically on the 17th. An attempt was then made to get the respondents not to oppose an application for condonation. Again nothing happened thereafter until a second fax was sent by Mr. Light on the 6th March, whereafter a second attempt was made to get respondents to agree to not oppose an application for condonation. Mr. Taapopi's statement in his affidavit that he was away on an official trip from 7 to 11 March and could therefore not depose to his founding affidavit shows that the legal practitioner was only now jolted into action.
One asks oneself how it is possible that such a situation can arise. I would think that it is elementary that when one appeals that it has now become necessary to prepare and lodge the record of the proceedings. How else will the Court of appeal be able to deal with the matter? Rule of Court 5(5) is very clear and explicit as to what the duties of an appellant are concerning the lodging of the record and if the legal practitioner was unsure as to what to do, a mere glance at the Rule would have told him all that he needed to know. This, evidently, did not happen and the matter was left to take care of itself.
A further aspect which is relevant to the application for condonation is Mr. Taapopi's statement in pa. 10 of his founding affidavit namely: "…the Immigration Selection Board has renewed her (first respondent's) employment permit for a period of 1 year so that she may earn a living while this Honourable Court decides the matter". This statement was obviously made to convince the Court that the delay which occurred by the late lodging of the record was not done to frustrate the administration of justice and to counter any potential harm for the first respondent which may have been occasioned thereby. This is said in so many words by Mr. Taapopi.
However, shortly before the appeal was due to be heard, an affidavit was filed by the first respondent in which she stated that notwithstanding the assurance by Mr. Taapopi she was not issued with an employment permit. She also set out in the affidavit her attempts and that of her legal representative to follow up the statement made by Mr. Taapopi. To this extent they also called upon the assistance of Mr. Asino. By now the first respondent's own attempts to secure an employment permit had grinded to a halt. It seems that the statement by Mr. Taapopi blew new life into the attempts of the first respondent and her legal practitioner to get the permit issued. They were unsuccessful.
When the matter was argued we asked Mr. Oosthuizen what the position was and we were informed that an employment permit was not granted to the first respondent. As the statement by Mr. Taapopi was obviously made to support the application for condonation and to convince the Court that any potential harm caused to the first respondent by the delay was countered by the issue of a further employment permit for a year, we asked for an explanation and allowed the parties to file further affidavits on this aspect. These have been done.
In his affidavit Mr. Taapopi stated that the Immigration Selection Board, against his advice, refused to grant a work permit to first respondent and that he as an individual was therefore not able to make good his undertaking. The reasons given for the refusal were that first respondent had stopped working for CASS and now wanted to be self-employed.
The deponent further submitted that the failure to issue a permit did not prejudice her as she continued to work and also understood that she could not be interfered with as long as her case was still pending in this Court. Finally it was submitted that the first respondent was not prejudiced by the failure of the Board to issue a permit as was undertaken by Mr. Taapopi in his affidavit. First respondent admitted that she worked but said that it was on an ad hoc basis as she was afraid to take a full time work without having a permit. She also admitted that she was not hindered by the appellant and said that she also assisted at the offices of Sister Namibia but this was mostly voluntary work. During this period, and when it was necessary, she was financially supported by her parents and the second respondent.
However, the issue is not whether, objectively speaking, the reasons for the refusal of an employment permit were good or not good. What concerns me in this application is the obvious conflict between what was stated by Mr. Taapopi in par. 10 of his application for condonation and what has now came to light in the supplementary affidavit and, as he put it, prevented him from honouring his undertaking given in his application for condonation. However what was set out in par. 10 of the application for condonation was not an undertaking to arrange for an employment permit but was a statement of fact that a permit was indeed granted, and this allegation was made with a specific purpose to assist the appellant in its application. Nothing can be clearer than the words "…the Immigration Selection Board has renewed her employment permit for a period of 1 year so that she may earn a living while this Honourable Court decides the matter". What is more, no attempt was ever made to put the correct facts before the Court until the Court insisted on an explanation. Not even after the first respondent had joined issue thereon. Also in regard to the short affidavit of Mr. Asino, the impressions created changed substantially and notwithstanding the fact that Mr. Light's affidavit was in direct conflict with that of Mr. Asino on various issues it was thought, so it seems, advisable not to reply thereto.
So far I have dealt only with the non-compliance with the Rules of Court and as I have tried to do, show that there was no explanation whatsoever put forward justifying or attempting to justify such non-compliance. I have also tried to show that the explanation, as far as it goes, did not set out fully what the circumstances were and that the appellant and its legal practitioner were not always frank with the Court.
Nevertheless I am of the opinion that this is not an instance where the Court should decide the application without having regard also to the merits of the appeal in relation to the other factors which were mentioned.
Two further factors, mentioned by Holmes, J.A., in Federated Employers Fire & General Insurance Co. Ltd.-case, supra, are the importance of the case and the interest of the respondents in the finality of the judgement. As was pointed out by Vivier, J.A., in Court v Standard Bank of SA Ltd; Court v Bester, NO and Others, 1995(3) SA 123 (AD) the latter factor militates against the granting of the indulgence (p.127C). See also Mbutuma v Xhosa Development Corporation Ltd., 1978(1) SA 681(A) at 686F - 687A. In this case the Court approved of what was stated by Solomon, J.A., in Cairns Executors v Gaarn, 1912 AD 181 at 193, namely:
"When a party has obtained a judgement in his favour and the time by law for appealing has lapsed, he is in a very strong position, and he should not be disturbed except under very special circumstances".
In the present instance, although the appeal was timeously noted, it lapsed due to the fact that no record was lodged and that up to the 17th February 2000, a period of almost five months, there was no indication whatsoever that appellant intended to continue with the appeal.
Concerning the Constitutional issues raised by the respondents in their founding affidavits, regard must be had to the following excerpt from the judgement of the Court a quo.
Dealing with the issue of the respondents' lesbian relationship Levy, A.J., stated as follows at p. 322 of his judgement:
"In the opposing affidavit concerning the applicants' lesbian relationship, Mr. Simenda says:
'…the fact that the applicant is a lesbian played no role whatsoever in the decision taken by the Board, I also deny the unfounded and unsubstantiated allegation that the Board might have been influenced in the manner suggested herein. The Applicants' sexual preference was considered to be a private matter having no bearing on the Applicants' application.'
When Mr. Light on behalf of applicants addressed this Court, he said that in the light of this categorical statement the applicant's sexual orientation was no longer an issue in these proceedings."
This statement by Mr. Light is difficult to reconcile with an intention to raise the constitutional issues. One would have thought that this statement by Mr. Simenda would have strengthened Mr. Light's argument that in terms of the Constitution it was wrong for appellant to regard the lesbian relationship as neutral. What is more, after referring to what was said in this regard by Mr. Light the Court a quo did not rely for its judgement in respondents' favour on any of the constitutional issues raised in the application concerning the lesbian relationship. The Court a quo referred to certain articles of the Constitution, namely Articles 10, 16 and 21(1)(e), but this referred to the forming of a universal partnership and the protection of property and freedom of association.
There is also no indication that because the Court a quo came to its conclusion on different grounds it did not find it necessary to deal with the Constitutional issues. In my opinion it would have said so if that was the case.
This situation creates an uncertainty as to whether the constitutional issue was before the Court a quo and whether Mr. Light, when he made his statement in that Court, did not abandon that issue. Because also of the conclusion to which I have come, and certain concessions made by Mr. Oosthuizen, it is wise not to deal with this issue at this stage.
As far as the prospects of success on appeal are concerned, these are greatly influenced by two concessions made by Counsel for the appellant, namely that Article 18 of the Constitution applied to the proceedings whereby appellant refused to grant to first respondent a permanent residence permit. Secondly that from the reasons supplied by appellant, it is clear that the Board came to their conclusion on an issue which was not canvassed by the first respondent and in regard of which she should have been informed by the Board and given an opportunity to deal with. Counsel's concession amounts thereto that the order of the Court a quo whereby it set aside the decision of the appellant in refusing to grant to the first respondent a permanent residence permit was correct albeit for other reasons than those stated by that Court. Counsel however submitted that the Court a quo was nevertheless wrong in directing the appellant to issue such permit and should have referred the matter back to the Board. Counsel therefore submitted that this Court should set aside paragraph (b) of the order of the Court a quo and refer the matter back to the appellant Board.
Concerning the first concession made by Mr. Oosthuizen I am of the opinion that there cannot be any doubt that Article 18 of the Constitution applies. This was also the finding of the Court a quo. This Article provides as follows:
"18 Administrative Justice
Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon 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."
Article 18 is part of Chapter 3 of the Constitution which deals with Fundamental human rights and freedoms. The provisions of the Chapter clearly distinguishes which of these provisions apply to citizens only (e.g. Art. 17), and which to non-citizens (e.g. Art. 11(4) and (5)). Where such distinction is not drawn, e.g. where the Article refers to persons or all persons, it includes in my opinion citizens as well as non-citizens. The Article draws no distinction between quasi judicial and administrative acts and administrative justice whether quasi judicial or administrative in nature "requires not only reasonable and fair decisions, based on reasonable grounds, but inherent in that requirement fair procedures which are transparent" (Aonin Fishing v Minister of Fisheries and Marine Resources, 1998 NR 147 (HC).) Article 18 further entrenches the common law pertaining to administrative justice and in so far as it is not in conflict with the Constitution.
Concerning fair procedure, I am of the opinion that it is not now the time to determine numerus clausus of rules and that this part of the law should be allowed to develop as the present case is to my knowledge the first one where Article 18 has pertinently required the attention of the Supreme Court. For purposes of this case it is enough to say that at the very least the rules of natural justice apply such as the audi alteram partem rule and not to be the judge in your own cause etc.
For the above reasons I am satisfied that the concession made by Mr. Oosthuizen, namely that Article 18 of the Constitution applied to the proceedings whereby the appellant refused to issue to first respondent a permanent residence permit, was correct. The right of the first respondent to be treated fairly and reasonably is therefore not based on a legitimate expectation but on the Constitution itself.
In order to determine the cogency of the second concession made by counsel for the appellant, it is necessary to consider the relevant provisions of the Immigration Control Act to determine inter alia, what requirements were imposed by any relevant legislation on the appellant Board in the exercise of their discretion (Art. 18).
The appellant is constituted in terms of sec. 25 of the Act and is required to consider applications for permanent residence permits subject to the provisions of section 26 of the Act.
Sec. 26 of the Immigration Control Act, Act No. 7 of 1993 (the Act), provides as follows:
"26(1)(a) An application for a permanent residence permit shall be made on a prescribed form and shall be submitted to the Chief of Immigration.
Different forms may, for the purpose of paragraph (a), be prescribed for different categories of persons.
Subject to the provisions of subsection (7), the Chief of Immigration shall submit every application received by him or her to the Board together with such information relating to the applicant as he or she may have obtained and shall furnish such further information to the Board as it may require in connection with such applicant.
The Board may authorize the issue of a permit to enter and to be in Namibia for the purpose of permanent residence therein to the applicant and make the authorization subject to any condition the Board may deem appropriate: Provided that the Board shall not authorize the issue of such a permit unless the applicant satisfies the Board that -
he or she is of good character; and
he or she will within a reasonable time after entry into Namibia assimilate with the inhabitants of Namibia and be a desirable inhabitant of Namibia; and
he or she is not likely to be harmful to the welfare of Namibia; and
he or she has sufficient means or is likely to earn sufficient means to maintain himself or herself and his or her spouse and dependent children (if any), or he or she has such qualifications, education and training or experience as are likely to render him or her efficient in the employment, business, profession or occupation he or she intends to pursue in Namibia, and
he or she does not and is not likely to pursue any employment, business, profession or occupation in which a sufficient number of persons are already engaged in Namibia to meet the requirements of the inhabitants of Namibia; and
the issue to him or her of a permanent residence permit would not be in conflict with the other provisions of this Act or any other law; or
he or she is the spouse or dependent child, or a destitute, aged or infirm parent of a person permanently resident in Namibia who is able and undertakes in writing to maintain him or her.
When the Board has authorized the issue of a permanent residence permit, the Chief of Immigration shall issue such permit in the prescribed form to the applicant."
Sub-sec. (5) of sec. 26 deals with the lapsing of a permanent residence permit and sub-sec. (6) allows a person who is in Namibia on an employment permit, student's permit or visitor's entry permit to be issued with a permanent residence permit whilst such persons are in Namibia. Sub-sec. (7) regulates the period or other circumstances after which re-application can be made after the Board had rejected an application for a permanent residence permit.
Section 26 makes it clear that the appellant does not have an absolute discretion. Sub-sec. (3)(a), (b), (c), (d), (e) and (f) contain certain requirements which an applicant for a permanent residence permit must satisfy the appellant before a permit may be issued. If the Board is not so satisfied it has no choice but to refuse the application.
In dealing with sec. 26 the Court a quo went one step further. It concluded that where an applicant for a permanent residence permit satisfies the Board as aforesaid the Board is obliged to grant the permit. At p. 326 of the judgement the Court a quo, referring to the affidavit of Mr. Simenda, found as follows:
"I firstly draw attention to paragraph 9.2 of his affidavit where he says:
'9.2 There was also no specific information before the Board that adversely affected the Applicant's application.'
From this it is apparent that there were no grounds whatsoever for refusing the applicant. This statement of Mr. Simenda is sufficient to justify this court setting aside the Board's decision without any further ado."
The Court a quo then dealt with the reasons given by the appellant for refusing to grant the permit set out in par. 10.1, and 10.2 of Simenda's affidavit. In par. 10.2 the appellant stated that even if there was at present a shortage of persons with the qualifications, skills and experience of the first respondent the appellant took into account that more and more Namibian citizens will in the years to come acquire the necessary qualifications etc. and that these citizens will have to be accommodated in the limited labour market of Namibia.
Dealing with this statement the learned Judge a quo found that the appellant, in refusing the application for a permanent residence permit believed that it was acting in terms of section 26(3)(e) of the Act whereas sec. 26(3)(e) only refers to persons already engaged in Namibia in any employment, business, profession or occupation. Therefore the appellant could not take into consideration what the position may be in the future.
I find myself unable to agree with this interpretation of sec. 26. There is in my opinion no indication in the section itself which would limit the exercise of a discretion by the appellant to the absence of the requirements set out in sub-section (3)(a) - (f). In such an instance the appellant would normally exercise no discretion at all. All that would be required of it, is to determine in each instance whether the requirements set out in sub-section (3)(a) - (f) were complied with or not. If they were complied with, the Board is obliged to issue a permit. If they were not complied with, the Board is obliged to refuse a permit.
Furthermore the fact that sub-section (3) begins with the words "the Board may authorize the issue of a permit …" (my emphasis) is clear indication that the appellant has a wide discretion once the circumscribed part, set out in sub-section (3)(a) to (f), has been satisfied. This interpretation also conforms with the other provisions of the Act. See in this regard sec. 24 of the Act which prohibits the entry or residence in Namibia of non-citizens, with a view to permanent residence unless such person is in possession of a permanent residence permit. Also in regard to temporary residence no person is allowed to enter or reside in Namibia without being in possession of an employment permit, issued in terms of section 27, or a student's permit, issued in terms of section 28, or a visitor's entry permit, issued in terms of section 29. See further in general sections 6, 7, 8, 9, 10, 11 and 12 of the Act. There is also authority for the principle that a foreign national cannot claim permanent residence as of right and that the State has an exclusive discretion as to whether it would allow such nationals in its territory. See Everett v Minister of Interior, 1981(2) SA 453 at 456 D - 457 E; Naiderov v Minister of Home Affairs and Others, 1995(7) BCLR 891 (T) at 901; Xu v Minister van Binnelandse Sake, 1995(1) SA 185 (TPA) at 187 G - 188 E. See also Foulds v Minister of Home Affairs and Others, 1996(4) SA 137 (WLD). However, as far as Namibia is concerned, this principle is subject to the provisions of Article 18 of the Constitution and as long as the Board acts fairly and reasonably and in accordance with a fair procedure there is no basis for interference by a Court of Law. I therefore agree with the submissions made by Mr. Oosthuizen that the appellant, once satisfied that the requirements set out in section 26(3)(a) - (f) were complied with, could consider other relevant factors provided of course, that they have done so where necessary, in compliance with Article 18 of the Constitution.
However, this is not the end of the matter. In her argument Ms. Conradie submitted that the appellant did not comply with the audi alteram partem rule and did not give the first respondent an opportunity to address the issue of qualified and experienced staff who could provide the services which first respondent was able and willing to render. Counsel further pointed out that it was clear from the record filed by the appellant as well as the affidavits filed by it that there was not a scrap of evidence concerning these issues before the appellant Board.
At one stage Mr. Oosthuizen submitted that the respondents should have cross-appealed if they now want to rely on non-compliance by appellant with the audi alteram partem rule. This seems to me to be incorrect as the respondents would be entitled to argue that the appeal could also not succeed because of such non-compliance. See Mufamadi and Others v Dorbyl Finance (Pty) Ltd., 1996(1) SA 799 (AD) at 803 G - H.
The first respondent's right to be treated fairly and in accordance with a fair procedure, placed the appellant under a duty to apply the audi alteram partem rule. This rule embodies various principles, the application of which is flexible depending on the circumstances of each case and the statutory requirements for the exercise of a particular discretion. (See Baxter: Administrative Law p. 535 ff and Wiechers: Administrative Law p. 208 ff.)
In the context of the Act, the process for the application of a permit was set in motion by the submission of a written application by the first respondent. If on such information before it, the application is not granted, and provided the Board acted reasonably, that would be the end of the matter. However, there may well be instances where the Board acts on information they are privy to or information given to them by the Chief of Immigration (see sec. 26(2)). If such information is potentially prejudicial to an applicant, it must be communicated to him or her in order to enable such person to deal therewith and to rebut it if possible. (See Loxton v Kendhardt Liquor Licensing Board, 1942 AD 275 and Administrator SWA v Jooste Lithicum Myne (Edms) Bpk, 1955(1) SA 557(A). However, where an applicant should reasonably have foreseen that prejudicial information or facts would reach the appellant, he or she is duty bound to disclose such information. (See Wiechers op. cit. P. 212.)
In the absence of any prescription by the Act, the appellant is at liberty to determine its own procedure, provided of course that it is fair and does not defeat the purpose of the Act. (Baxter, op. cit. P. 545). Consequently the Board need not in each instance give an applicant an oral hearing, but may give an applicant an opportunity to deal with the matter in writing.
Furthermore, it seems to me that it is implicit in the provisions of Article 18 of the Constitution that an administrative organ exercising a discretion is obliged to give reasons for its decision. There can be little hope for transparency if an administrative organ is allowed to keep the reasons for its decision secret. The Article requires administrative bodies and officials to act fairly and reasonably. Whether these requirements were complied with can, more often than not, only be determined once reasons have been provided. This also bears relation to the specific right accorded by Articles 18 to persons to seek redress before a competent Court or Tribunal where they are aggrieved by the exercise of such acts or decisions. Article 18 is part of the Constitution's Chapter on fundamental rights and freedoms and should be interpreted "… broadly, liberally and purposively…" to give to the article a construction which is "… most beneficial to the widest possible amplitude". (Government of the Republic of Namibia v Cultura 2000, 1993 NR 328 at 340 B - D.) There is therefore no basis to interpret the Article in such a way that those who want to redress administrative unfairness and unreasonableness should start off on an unfair basis because the administrative organ refuses to divulge reasons for its decision. Where there is a legitimate reason for refusing, such as State security, that option would still be open.
Although appellant initially refused to give reasons for its decision, such reasons were later set out in the affidavit of Mr. Simenda. These were that many Namibians graduated and will continue to graduate with the same qualifications and expertise as that of the first respondent and that employment must be found for them. Also many volunteers on temporary permits are in Namibia as in-service trainers and research officers. Secondly it is stated that even if it can be said that at present there is a shortage of persons with the qualifications, skills and experience of the first respondent then the Board took into account that more and more Namibians will qualify for such employment in the next few years and they must be accommodated.
The second reason given very much qualifies the veracity of the first one. It is clear that the Board's considerations were based on assumptions made by it rather than factual evidence and that it was expressing what policies it was applying under the circumstances. There can be no doubt that the application of the first respondent was prejudicially affected by a policy that was operating against her based on assumptions, both of which she was unaware of. (See Lukral Investments. v Rent Control Board, Pretoria, 1969(1) SA 496 (T) at 509 - 510 and Moleko v Bantu Affairs Administration Board (Vaal Triangle Area), 1975(4) SA 918(T) at 925 - 926.) It may have been perfectly in order for the appellant to have a policy in regard to the granting of permanent residence permits and that it was fair and reasonable to apply it in the present instance. However, before it could do so, it had to inform the first respondent what it considered doing in this regard and to give her an opportunity to deal with such issues. First respondent denied in her replying affidavit these assumptions made by the appellant. When the application was submitted first respondent, through her legal practitioner, offered to appear before the Board to deal with any information which may adversely reflects upon her application. This was in all probability anticipated because her 1996 application was turned down. (See annexure "EF6".) A perusal of the application form, prescribed for permanent residence, also showed that it contained nothing which would have alerted an applicant to the fact that the appellant would apply these policy considerations.
For the reasons set out above, I agree that the second concession made by Counsel for the appellant was also correctly made. It follows therefore that the Court a quo was correct in setting aside the decision taken by the appellant on the 29th July 1997 and that in this regard the appeal before us cannot succeed. All that remains is Mr. Oosthuizen's submission that the Court should nevertheless set aside the direction given by the Court a quo and refer the matter back to the appellant so that they can reconsider the first respondent's application after complying with the audi alteram partem rule.
The Court a quo had a discretion whether to refer the matter back to appellant or to order the appellant to issue the permit. (See W.C. Greyling & Erasmus (Pty) Ltd. V Johannesburg Local Road Transportation Board and Others, 1982(4) SA 427 (AD) at 449 F- H.) (The reference to authority in South Africa in this regard is also apposite as in terms of Article 78(4) of our Constitution the Supreme and High Courts of Namibia retained inherent jurisdiction which vested in the Supreme Court of South West Africa immediately before independence.) Generally a Court would only exercise the discretion itself where there are exceptional circumstances present. (See the W.C. Greyling-case, supra.) Examples of instances where the Courts have exercised their jurisdiction not to refer a matter back include cases where there were long periods of delay, where the applicant would suffer prejudice or where it would be grossly unfair. (See the Greyling-case, supra; Dawnlaan Beleggings (Edms) Bpk. v Johannesburg Stock Exchange (Edms) Bpk and Others, 1983(3) SA 344 (WLD) at 369 G - H and Local Road Transportation Board and another v Durban City Council and Another, 1965(1) SA 586 (AD) at 598 D - 599.)
Although there may be some substance in Mr. Oosthuizen's submission that the Court a quo should have referred the matter back to the appellant Board for reconsideration, also because one of the factors on which the Court based the exercise of its discretion was its interpretation of sec. 26 of the Act, I am not convinced that this is sufficient to tip the scales in favour of the appellant and that this Court should therefore grant the appellant condonation. As was pointed out by the Court a quo there was no legal impediment against the granting of the permit as the appellant was seemingly satisfied that the first respondent has complied with the provisions of sec. 26(3)(a) - (f) and that strong support from notable persons was expressed in favour of the granting of the permit. That this was so is also clear from the fact that at no stage did appellant rely on non-compliance by first respondent of the qualifications set out in sec. 26(3).
For a period of more than three years the respondent's residence in Namibia was in the balance and was clothed in a veil of uncertainty. To the extension of this period and to the uncertainty the legal representative of the appellant contributed significantly. The result of the delay, which is completely unexplained, had the effect that this appeal which could have been heard during the October 1999 session, was only heard a year later. This was rightly conceded by Mr. Oosthuizen. This was a review application where no other evidence necessitated time in the typing and preparing of a record for the Supreme Court. All that was necessary to be added to the already prepared record, which was before the Court a quo, was that Court's judgement, the grounds of appeal and the consent to appeal directly to this Court. This is further confirmed by the fact that when the legal representative of the appellant realised what was required of him he was able to prepare the record and file it within a period of two days, namely from the 7th to 9th of March. Because of the delay the matter could also not be heard during the April 2000 session of this Court. Also the assurance which this Court was initially given that the appellant tried to alleviate the situation by issuing to the first respondent a temporary employment permit, in order to counter any possible prejudice to the first respondent, was later found not to have materialised.
Especially in a case such as the present, which involves the continued residence of the respondents, the possibility of a complete uprooting was always present, and there can be little doubt that this uncertainty must have caused anguish and hardship to the respondents which was further prolonged by the unwarranted delay caused by the failure to comply with the Rules of the Court. Such possibility was after all foreseen by the appellant.
In the present instance this Court is dealing with this issue in the context of an application for condonation where further considerations such as the interest of the respondents in the finality of the proceedings, is a most relevant factor. To require of the respondents, after a period of more than three years, to have to go through the same uncertainty and anguish and to face the risk of again making the same tiresome way through the Courts will constitute an injustice which this Court is not prepared to sanction. Although the delays which occurred were not always caused by the appellant the fact of the matter is that the non-compliance of the appellant's with their constitutional duties necessitated the institution of these proceedings.
Since September 1998 the first respondent was without an employer's permit which renders her stay in Namibia illegal and also affects her ability to do any work. Any further delay will only prejudice her further. For the above reasons it seems to me that the importance of the case must give way to the interest of the respondents in the finality of the case and the prejudice which a referral back to the Board will cause. All this coupled with the fact that the non-compliance with the Rules was flagrant and was not at all explained have convinced me that this is a case where the Court should refuse the appellant's application for condonation.
In the result the appellant's application for condonation is dismissed and the order of the Court a quo must be complied with within 30 days of delivery of this judgement.
(signed) STRYDOM, C.J.