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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: A 158/2015

DATE: 19 MAY 2016

REPORTABLE

In the matter between:

HERMAN SHITIVENI......................................................................................................APPLICANT

And

NATIONAL HOUSING ENTERPRISE LTD.................................................FIRST RESPONDENT

JOHANNES FILLEMON............................................................................SECOND RESPONDENT

KENNEDY KAMATI.......................................................................................THIRD RESPONDENT

JUSTINE NDEMUWEDA...........................................................................FOURTH RESPONDENT

REGISTRAR OF DEEDS.................................................................................FIFTH RESPONDENT

Neutral citation: Shitiveni v National Housing Enterprise Ltd (A 158/2015) [2016] NAHCMD 150 (19 May 2016)

Coram: PARKER AJ

Heard: 18 April 2016

Delivered: 19 May 2016

Flynote: Review – Application to review decision of administrative body and administrative official – Court not competent to review and set aside decisions of private individuals – Court competent to review decision of administrative bodies and administrative officials only – In instant case court competent to review decision of first respondent (an administrative body) and fifth respondent (an administrative official – Court held administrative body or administrative official bears no onus to justify its action carried out in terms of the applicable statute; onus rests upon the applicant for review to satisfy court that good grounds exist to review the conduct complained of – Such grounds should be common law grounds or grounds in terms of art 18 of the Namibian Constitution – Court held further that the absence of opposition does not by itself entitle the applicant to judgment, as if by default – Court found that applicant has failed to discharge the onus cast on it – Consequently, application dismissed with costs – Principles in Immanuel v Minister of Home Affairs and Others 2006 (2) NR 687 (HC); and Christian v Metropolitan Life Namibia Retirement Annuity Fund 2008 (2) NR 753 (SC) applied.

Summary: Application to review decision of administrative body and administrative official – Court not competent to review and set aside decisions of private individuals – Court competent to review and set aside decision of administrative bodies and administrative officials only – In instant case court competent to review decision of first respondent (an administrative body) and fifth respondent (an administrative official) only – Court held administrative body or administrative official bears no onus to justify its action carried out in terms of the applicable statute; onus rests upon the applicant for review to satisfy court that good grounds exist to review the conduct complained of – Such grounds should be common law grounds or grounds in terms of art 18 of the Namibian Constitution – Court held further that the absence of opposition does not by itself entitle the applicant to judgment, as if by default – Applicant brought an application to review and set aside decision of second respondent to sell property to third respondent and decision of third respondent to donate that property to fourth respondent – Court not competent to review and set aside decisions of these three respondents on the basis that they are not administrative bodies or administrative officials (ie public authorities) – Court competent  to review and set aside decision of first respondent (an administrative body) and fifth respondent (an administrative official) only – But applicant failed to discharge the onus cast on him to satisfy the court that good grounds exist to review the conduct complained of – Consequently, court dismissed application with costs.

ORDER

(a) The point in limine raised by second and third respondents is dismissed.

(b) The application is dismissed.

(c) Applicant is to pay 60 per cent of second and third respondents’ taxed costs of the application.

JUDGMENT

PARKER AJ:

[1] This matter revolves around transactions relating to the property of first respondent (‘NHE’), Erf 744, Wanaheda, Katutura, Windhoek (‘the property’) which NHE sold and transferred to second respondent. The second respondent qua owner of the property sold and transferred it to third respondent, who in turn donated it to fourth respondent. The upshot of these transactions is that fourth respondent’s ownership of the property is traceable to the deed of sale entered into between NHE and second respondent on 30 November 2005 and the subsequent deed of transfer registered as No. T 3749/2006. It is the aforementioned transactions that are the subject matter of the instant application brought on notice of motion whereby the applicant seeks the orders set out in the notice of motion. The second and third respondents have moved to reject the application. The first, fourth and fifth respondents have not.

Point in limine

[2] In their answering affidavit, second and third respondents refer to certain parts of the answering affidavit and conclude: ‘My legal practitioner will request these allegations be struck from the record as being vague and embarrassing’. Thus, these respondents seek to raise an exception as a point in limine. On that score it is the applicant’s contention – articulated by Mr Ipumbu, counsel for the applicant, in his submission – that the point in limine should be dismissed because in our law such exception should be properly raised and delivered in terms of rule 57 of the rules of court; but the respondents have not done so.

[3] I accept Mr Ipumbu’s submission as correct statement of the rule. I did not hear Mr Grobler to answer convincingly and cogently to the argument. As I see it, there is no proper exception before the court for the court to determine. It follows that the point in limine is rejected. I now proceed to consider the application on the merits.

The relief sought is judicial review

[4] The relief sought by the applicant is judicial review through and through. The order sought is to review and set aside an action of first, second, third, fourth and fifth respondents, but only first and fifth respondents are administrative bodies or administrative officials (to use the language of art 18 of the Namibian Constitution). The second, third and fourth respondents are private individuals; they are not administrative officials (to use the language of art 18 of the Namibian Constitution) or public authorities. The question that is raised is whether there is a basis in law for the court to review and set aside the conduct of private individuals.

[5] The locus classicus on the meaning of the term ‘review’ is Johannesburg Consolidated Investment Co v Johannesburg Town Council (JCI). There, at 114, Innes CJ (writing for the majority of the Appellate Division) held that there were three distinct meanings of the term ‘review’. First and foremost, in the ordinary course, ‘review’ denoted -

‘the process by which, apart from appeal, the proceedings of inferior Courts of Justice, both Civil and Criminal are brought before [the] Court in respect of grave irregularities or illegalities occurring during the course of such proceedings.’

[6] Innes CJ, at 115 described the second type of review as follows:

‘Whenever a public body has a duty imposed upon it by statute, and disregards important provisions of the statute, or is guilty of gross irregularity or clear illegality in the performance of the duty, [the] Court may be asked to review the proceedings complained of and set aside or correct them.’

[7] The second species of review has been given constitutional buttress by art 18 of the Namibian Constitution. There is the third type of review.

[8] The third type of review is a special statutory review where the court is expressly empowered to review decisions of inferior courts, eg review in terms of s 306 of the Criminal Procedure Act 51 of 1977 or to review decisions of tribunals, eg review in terms of s 89 of the Labour Act 11 of 2007. The nature of a reviewing court’s powers in cases of special statutory review is entirely dependent upon the dictates of the statute in question. (Cora Hoexter, Administrative Law in South Africa (2007), pages 108-110)

[9] I have set out the categories of review under the law to reject the applicant’s application to review and set aside the conduct of second, third and fourth respondents. These respondents are not inferior courts; they are not tribunals; and they are not administrative bodies or administrative officials. And Mr Ipumbu did not tell the court upon what legal basis the court is competent to review and set aside the conduct of the second, third and fourth respondents.

[10] Based on the categories of judicial review I hold that the court is not competent to review and set aside the conduct of the second, third and fourth respondents. It now remains to consider the application to review and set aside the decision of first respondent and fifth respondent, who are administrative officials, as aforesaid.

[11] The starting point should be these important principles: First, an administrative body or administrative official bears no onus to justify its action carried out under power given to it or him or her by an applicable statute. ‘The onus rests upon the applicant for review to satisfy the court that good grounds exist to review the conduct complained of’. (Immanuel v Minister of Home Affairs and Others 2006 (2) NR 687, para 54) Second, ‘The absence of opposition, however, does not by itself entitle the applicant to judgment – as if by default. The “onus rests upon the applicant for review to satisfy the Court that good grounds exist to review the conduct complained of”.’ (Christian v Metropolitan Life Namibia Retirement Annuity Fund 2008 (2) NR 753 (SC), para 15)

[12] The applicant has not established that any common law ground (see Hoexter, Administrative Law, ibid, pages 223-324) exists to review and set aside the decision of first respondent and decision of fifth respondent. He has also not established that any ground mentioned in art 18 of the Namibian Constitution exists to review and set aside the decision of the first respondent and of the fifth respondent, that is, in respect of the first respondent, its decision – as owner of the property – to sell its own property; and in respect of the fifth respondent, the decision of the fifth respondent to exercise its discretion under the Deeds Registries Act 47 of 1937 to register the deeds of transfer No. 73749/2006, No. T 951/20, and No. T 4919/2014.

[13] It follows inexorably that the applicant has failed to discharge the onus cast on him to satisfy the court that good grounds exist to review the conduct of the first respondent and the conduct of fifth respondent complained of (See Christian, loc. cit.) The fact that the first respondent did not oppose the application – which fact the applicant is so much enamoured with – cannot, upon the authority of Christian, assist the applicant. He was not thereby absolved from his onus of satisfying ‘the Court that good grounds exist to review the conduct’ of the two public authorities.

[14] Based on the reasons that the applicant has failed to discharge the aforementioned onus cast on him, the application to review and set aside the decision of the first respondent and of the fifth respondent also fails.

[15] It remains to consider the question of costs. The second and third respondents failed in their point in limine, and the applicant has failed on the merits of the application. For that reason I am not persuaded that the second and third respondents, although successful in resisting the application, are entitled to all the costs of the application. In my discretion, I would award the two respondents only 60 percent of the taxed costs of the application.

[16] In the result, the following order is made:

(a) The point in limine raised by second and third respondents is dismissed.

(b) The application is dismissed.

(c) Applicant is to pay 60 per cent of second and third respondents’ taxed costs of the application.

C Parker

Acting Judge

APPEARANCES

APPLICANT: T Ipumbu

Of Titus Ipumbu Legal Practitioners, Windhoek

SECOND AND THIRD

RESPONDENTS: Z J Grobler

Of Grobler & Co., Windhoek

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