Negotiations then followed wherein appellant's attorney attempted to obtain the cooperation of respondents and their attorneys not to oppose an application for condonation.
The attorneys for appellant and respondents are not completely ad idem in regard to the details of the negotiation but suffice to say, there were negotiations and these negotiations failed. When it became evident to appellant's attorney that respondents consent to an unopposed application for condonation could not be obtained, he filed the record on 9th March 2000 and the application for condonation and the reinstatement of the appeal on 14th March 2000.
(d) The decision of the appellant Board was given already on 29th July 1997. But the first respondent Frank, only filed a review application in the High Court for the review of that decision on 13th February 1998, more than six (6) months after the date of the Board's decision.
No explanation has been offered for this delay on the side of the respondent.
(e) Then on 3rd April 1998, a default judgment was wrongly granted on the application of first respondent.
Application then had to be made for the setting aside of the default judgment. Application for the setting aside was launched on 30th April 1998. The application for setting aside was not opposed by respondent. The default judgment was then set aside on 3 July 1998.
Respondents only completed their review application by applying on 7 May 1999 for the joinder of Elizabeth Khaxas as 2nd applicant - approximately one (1) year and three (3) months after launching the review proceedings.
The more than "three (3) years of uncertainty" is mainly due to the fact that respondent took the decision of appellant Board on review and this led to a decision in their favour in the High Court and an appeal and application for condonation to the Supreme Court.
The appellant Board has no control over the fact that the Supreme Court has only three sessions a year.
Consequently in my respectful view, only 6 months of the whole period can be attributed to the negligence of the appellant's attorney.
I agree with the critical remarks by the Honourable Chief Justice regarding Mr. Taapopi's statement in his affidavit dated 14/3/2000 in support of the application for condonation that "the Immigration Selection Board has renewed her (first respondent's) employment permit for a period of one (1) year so that she may earn a living while this Honourable Court decides the matter". This statement was denied by first respondent in her replying affidavit. As a consequence, this Court asked appellant's counsel for an explanation during oral argument and when it was confirmed that the permit was never issued, this Court requested an explanation on affidavit. In response another affidavit was filed by Mr. Taapopi where the failure to issue the permit was explained and justified. Part of the explanation was that the Board, unfortunately "did not follow my undertaking in my founding affidavit in the application for condonation". Mr. Taapopi is also Chairperson of the appellant board.
Mr. Taapopi missed the point altogether. In his supporting affidavit he did not "undertake" to have the permit issued, but represented to the Court that it had been issued.
He had thus misrepresented the position to this Court in his aforesaid supporting affidavit and for this misrepresentation there is no explanation.
If this misrepresentation was deliberate, it would have amounted to contempt of court and/or perjury. Unfortunately this Court only viewed the complete set of affidavits relating to this issue after the oral hearing and did not give the parties and Mr. Oosthuizen on behalf of the appellant Board the opportunity to deal with the Court's concern relating to this apparent misrepresentation.
As there was no prejudice to the respondents, the Court did not think it necessary to reconvene the Court to pursue the matter.
It may be that the aforesaid representation was negligently made in the belief at the time that it will be honoured. I cannot believe that Mr. Taapopi could think that this misrepresentation will not be discovered in view of the known participation of the first respondent and her legal representatives in the proceedings. Nothing could therefore be achieved by a deliberate misrepresentation.
In the circumstances I do not think it justified to regard the said misrepresentation as deliberate or intentional but nevertheless it is justified to regard it as a serious blemish on the manner in which the chairman of the Board, its members and the Government Attorney on their behalf, conduct their official business.
I also take into consideration that the respondents were not prejudiced by this particular misrepresentation.
It is necessary to point out in this regard that the first respondent also made a serious misrepresentation to the Board and also to the Court a quo, by failing to disclose that she was at the time of her application to the Board and her review application to the Court, no longer employed as a Deputy Director of CASS. This clearly misled the review Judge, who continuously relied on first respondent's position with CASS.
In the circumstances I do not regard this incident as a reason or even as one of the reasons for refusing to return the respondent's application to the appellant Board for reconsideration with the specific instruction to apply the audi alterem partem rule in regard to the aforesaid paragraphs 10.1, 10.2 and 12 of the replying affidavit of Mr. Simenda, a member of the appellant Board.
(vii) I have already pointed out supra that by not referring the matter back to the Board, the Court will in effect nullify the provision that even where the Board grants an application, it can impose any condition "the Board may deem appropriate".
(viii) The Chief Justice accepts in his judgment that the Board would have been entitled to refuse the application on the grounds stated in the above-stated paragraph 10.2 of Mr. Simenda's affidavit provided it has complied with the audi alterem partem rule. By allowing the order of the Court a quo to stand however, this Court will prevent the Board from giving effect to that consideration after applying the audi alterem partem rule. If this Court now substitutes its opinion for that of the Board, it would do so regardless of whether the points made by the Board in paragraph 10.1, 10.2 and 12 are in fact well-founded or not. Furthermore, the Court will take the summary course without being in possession of the information which the Board may have available and without being in a position to consider whether or not conditions should be attached to the granting of the permit.
(ix) It is true that the respondents have lived in a state of uncertainty for three (3) years or more, but this is inherent in a situation where the one party is a citizen of another country and wishes to acquire permanent residence status, inter alia because she wants to legitimize and pursue a relationship, in this case a lesbian relationship, which up to the present has not been legitimized as such by the laws of Namibia and consequently not recognized by the authorities.
An issue such as the "lesbian relationship" relied on by respondents, is a very controversial issue in Namibia as in all or most of Africa and whether it should be recognized and if so to what extent, is a grave and complicated humanitarian, cultural, moral and most important, constitutional issue which must of necessity take time to resolve.
It would seem in all fairness that most of respondents' "uncertainty" and agony is caused by the non-recognition of their lesbian relationship.
In this respect it is necessary to keep in mind that none of the respondents are refugees fleeing from persecution or oppression. First respondent is a citizen of Germany, which country is generally regarded as democratic and civilized and probably tolerant to lesbians. That remains her home country available as such until she changes her citizenship by her own choice. Second appellant is a Namibian citizen, born and bred in Namibia where her child was born from a heterogeneous relationship. This home remains available to her and her child until she changes her citizenship by her own choice.
The Court a quo did not deal with the issue of the "lesbian relationship" and its impact on the application for permanent residence. The Chief Justice does not deal with this issue either. How then will the uncertainty and the anguish of the respondents be removed by following the course suggested?
Although this Court, as well as the High Court, undoubtedly has wide powers to set aside the decisions of administrative tribunals and even to substitute its own decision on the merits for that of such a tribunal in appropriate circumstances, the present case is not one where the substitution of our decision for that of the Board is justified. In my respectful view, that would amount to usurping the function of the Board, entrusted to it by the Legislature of a sovereign country.
For the reasons set out above, I am of the view that there is considerable merit in the appellant's appeal. That being so, the negligence of the legal representative of the appellants should not prevent the order of the Court a quo to be amended by returning the application of applicants/ respondents to the Board for reconsideration, unless the issue of the lesbian relationship justifies a different order.7 What remains therefore, is to deal with the issue of the respondents' lesbian relationship and its impact on the applicant's application for a permanent residence permit and the appropriate order to be made by this Court.
SECTION D: THE ISSUE OF RESPONDENTS' LESBIAN RELATIONSHIP AND ALLEGED BREACH OF THEIR FUNDAMENTAL RIGHTS The Court a quo as indicated supra, did not directly deal with the issue raised by respondents because it understood the respondents' counsel to have conceded that the issue of the lesbian relationship became irrelevant when Mr. Taapopi on behalf of the Board stated that the "lesbian relationship" was regarded as neutral and played no role in its decision.
In argument before this Court, Ms. Conradie, who appeared before us for respondents, submitted that the Court a quo misunderstood the attitude of Mr. Light, who appeared for respondents in the Court a quo. Ms Conradie proceeded to argue that the issue of the "lesbian relationship" had to be considered and decided upon by this Court, unless the appellant's application for condonation is rejected on other grounds, making it unnecessary to consider and decide the issue of the lesbian relationship and particularly its impact on the application by first respondent for a permanent residence permit.
In the first respondent's first application to the Board for permanent residence in 1996 there was no mention of the lesbian relationship.
In the second application of 25 March 1997, first respondent stated:
"Since 1990 I have lived together in Windhoek with my life partner, Elizabeth Khaxas, and her son Ricky Khaxab. We are living together as a family and I have taken on parental responsibilities for Ricky. Although Ms. Khaxas and I cannot officially marry we have committed ourselves to each other and wish to share the rest of our lives together in Namibia …"
A letter of support from Elizabeth Khaxas broadly affirming and supporting the application was attached.
When the application was refused, the following allegations were made in the application to the Court for the review of the Board's decision in regard to the respondents' lesbian relationship:
"17. I will be severely prejudiced should I be required to leave Namibia. I have made my life in Namibia. I reside here with my life partner and her son who are both Namibian citizens. My present residence in Namibia is uncertain, because I could be refused an employment permit at any time in the future. In that event, Elizabeth and her son would then have to try and live with me in another country. This would mean that I would have to leave my home and Elizabeth and Ricky would have to leave the country of their birth and nationality. I do not know where we would go or which country would admit us as a family. I respectfully submit that the Immigration Selection Board failed to take this relevant factor into account.
If I was involved in a heterosexual relationship with a Namibian citizen we would have been able to marry and I would have been able to reside in Namibia and apply for Namibian citizenship in terms of Article 4(3)(aa) of the Constitution. This is not possible because of our sexual orientation. I therefore respectfully submit that the Immigration Selection Board has failed to take this relevant factor into account, or to give it sufficient weight. I respectfully submit that its decision for these reasons has violated my rights to equality and freedom from discrimination guaranteed in article 10, privacy guaranteed in article 13(1) and the protection of the family guaranteed in article 14 of the Constitution."
It must be noted that neither first respondent in her 1977 application to the Board, nor 2thnd respondent in her letter of support, had alleged that they rely on any fundamental right in support of first respondent's application.
The Board consequently was not alerted to any specific fundamental rights on which first respondent and Khaxas relied and no issue was made at the time of fundamental human rights. It was also not then or even in the review application claimed that the applicant Frank was the spouse of Khaxas in terms of section 26(3)(g) and therefore entitled to be granted a permanent residence permit.
Had the first respondent then claimed that they relied on the fundamental right to equality, non-discrimination, family, dignity and privacy, the Board may have given these matters more attention and at least take a stand on these issues.
I must emphasize at the outset that the argument before us on behalf of respondents was not that the Board had infringed their fundamental rights as individuals in that it had e.g. failed to deal with them on a basis equal to other unmarried heterosexual individuals. The argument was that the Board had failed to accord their lesbian relationship equal status and privilege with that accorded men and women who are legally married and by this failure, the Board had violated their fundamental right to equality and non-discrimination and their fundamental rights to live as a family and to privacy and freedom of movement.
Before I deal with the specific submissions on behalf of respondents in regard to the alleged infringement of their fundamental rights and freedoms, it is apposite to first deal with the general approach of the Court in regard to claims that a litigant's fundamental human rights have been infringed.
THE NECESSARY PARTIES
A litigant approaching the Court claiming a remedy for an alleged infringement of a fundamental right or freedom, must ensure that the necessary parties are before Court.
The joinder of all the necessary parties is a principle of procedure in the Courts of law which can rightly be described as trite law.8 But this principle has added significance where, as in the instant case an applicant relies on Art. 5 of the Namibian Constitution, read with Article 25(1)(a) and (b) and where the remedy or part thereof may be that the Court would order Parliament, or any subordinate legislative authority or the Executive and agencies of Government, to remedy the particular defect within a specified period.
So e.g. a Court will decline to make an order against the Minister of Home Affairs, if such Minister is not a party to the proceedings. Similarly, the Court should not declare a law of parliament unconstitutional and/or to be amended, unless at least the State or the Government is represented in Court, at least by a Minister, whose Ministry is directly affected.9
THE BURDEN OF PROOF WHEN A PERSON ALLEGES AN INFRINGEMENT OF A FUNDAMENTAL RIGHT OR FREEDOM
I proceed from the position that there is an important resemblance between the burden of proof in the case of fundamental rights compared with fundamental freedoms, but also an important difference.
The Namibian Constitution makes a distinction between the fundamental rights contained in Articles 6 - 20 and the freedoms (or rights to freedoms) enumerated in Art. 21(1).
In regard to the aforesaid freedoms there is a general qualification contained in sub-article (2) of Art 21 which provides that the freedoms must be exercised subject to the laws of Namibia, but places limitations on the laws to which the freedoms are subject.
The South African Constitution, both the interim Constitution of 1993 and the final Constitution of 1996 contained in the Constitution of the Republic of South Africa Act No. 108 of 1996, makes no distinction between fundamental rights and freedoms as is the position in Namibia. The general qualification clause in the South African Act applies to both fundamental rights and freedoms.
The resemblance in regard to fundamental rights and freedoms in terms of the Namibian Constitution is this:
In both cases, whether we are dealing with a fundamental right or freedom, the applicant will have the burden to allege and prove that a specific fundamental right or freedom has been infringed. This will necessitate that the applicant must also satisfy the Court in regard to the meaning, content and ambit of the particular right or freedom.10 In regard to fundamental rights, the burden of proof remains throughout on the applicant to prove that a fundamental right has been infringed at least in regard to all those fundamental rights where no express qualification or exception is provided for in the wording of the fundamental rights such as in Articles 6 - 12, 14 and 18. Where an express qualification or exception is provided for as in Articles 13, 17(1), 20(3) and 20(4), the burden of proof may shift as in the case of the fundamental freedoms. But this question has not been argued and need not be decided in this case.
The position in regard to the burden of proof in cases of alleged infringements of fundamental human rights is the same in Zimbabwe where the Chief Justice said:
"I consider that the burden of proof that a fundamental right of whatever nature has been breached is on him who assert it."11
In the case of the fundamental freedoms provided for in Art. 21(1) of the Namibian Constitution, the initial burden is on the person alleging an infringement to prove the infringement and as part thereof, satisfy the Court in regard to the meaning, content and ambit of the fundamental freedom.
This initial onus corresponds to the "initial onus" referred to by Chaskalson, P, in the decision of the South African Constitutional Court in State v Makwanyane and Another 12. Once the initial burden is discharged, the burden then shifts to the party contending that the law, regulation, or act in question, providing the exception or qualification, falls within the reasonable restrictions on the freedom provided for in Sub-article (2) of Art. 21.
THE MEANING, CONTENT AND AMBIT OF A FUNDAMENTAL RIGHT OR FREEDOM
The significance of the wording
In my respectful view, the starting point in interpreting and applying a constitution, and establishing the meaning, content and ambit of a particular fundamental right, or freedom, must be sought in the words used and their plain meaning. This principle is endorsed by Seervai in his authoritative work "Constitutional Law of India" where he quotes with approval from the "Central Provinces case (1939) FCR 18 at 38:
"…for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting and since no two constitutions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. This may be so even when the words or expressions are the same in both cases, for a word or phrase may take a colour from its content and bear different senses altogether."13 But I am mindful of the dictum of this Court in the Namunjepo-decision where the learned Chief Justice Strydom said:
"A court interpreting a Constitution will give such words, especially the words expressing fundamental rights and freedoms, the widest possible meaning so as to protect the greatest number of rights…"
The "widest possible meaning" however, means no more than what Kentridge, J.A. said in the case of Attorney-General v Moagi.14 He declared: "… a Constitution such as the Constitution of Botswana, embodying fundamental rights, should as far as its language permits be given a broad construction…".
And as Friedman, J. comments in Nyamkazi v President of Bophuthatswana, "this is in my view the golden mean between the two approaches" meaning the approaches of the "positivist" and "libertarian" schools. (My emphasis added.)
I am also mindful of the many Namibian decisions where the basic approach in interpreting a constitution has been expressed in poetic and stirring language. So e.g. it was said in Government of the Republic of Namibia v Cultura 2000, :15 "It must be broadly, liberally and purposivelyinterpreted so as to avoid the'austerity of tabulated legalism' and so as to enable it to continue to play a creative and dynamic role in the expression and the achievement of the ideals and aspirations of the nation, in the articulation of the values bonding its people and in disciplining its Government."
(My emphasis added.)
But as pointed out by Seervai, citing what was said by Gwyer, C.J.,
"… a broad and liberal spirit should inspire those whose duty it is to interpret the constitution, but I do not imply by this that they are free to stretch and pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purposes of supplying omissions or correcting supposed errors. AFederal Court may rightly reflect that a Constitution of Government is a living and organic thing, which of all instruments has the greatest claim to be construed ut res magis valeat quam pereat."
(My emphasis added.)
This dictum was quoted by this Court, apparently with approval, in the decision of Minister of Defence, Namibia v Mwandingi.16 In the aforesaid decision, this Court also relied inter alia on a dictum by Lord Wilberforce in Minster of Home Affairs & An v Fisher & An, wherein the learned Law Lord had said:
"A constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a Court of Law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition of the character and origin of the instrument, and to be guided by giving full recognition and effect to those fundamental rights and freedoms with a statement of which the constitution commences…"
(My emphasis added.)
Kentridge, A.J., who wrote the unanimous judgment of the South African Constitutional Court in the State v Zuma, quoted with approval the following passage from a judgment of Dickson, J., (later Chief Justice of Canada) in the decision R v Big M. Drug Mart Ltd: